Is untaken holiday payable after being made redundant?

eits1000

Just been made redundant by my nasty bosses... I have a 2 month notice period on gardening leave which I am on now. I also have 10 days of untaken holiday which the company says will be deducted as part of my notice period, or I can take my holiday as part of my notice period (go figure), essentially meaning they will not pay me for any untaken holiday (I'd been saving them up also!).

There is a clause in my employment contract which states:

"For the holiday year during which your employment begins or ends, you will be entitled to such proportion of your annual holiday entitlement as the period of your employment in that holiday year bears to a full holiday year. The Company may require you to take some, all or none of any outstanding holiday entitlement during your notice period. Upon the termination of your employment for whatever reason you will, as appropriate, either be entitled to salary in lieu of any untaken accrued holiday entitlement or be required to repay to the Company any salary received in respect of holiday taken in excess of your proportionate holiday entitlement."

Which technically means we can ask you to consume your vacations in notice period". 
My question to the forum is, even though I signed this contract, do I not have a legal right to receive my untsken holiday days as a payment? I called the government helpline and they said that the contract wouldn't stand up and they must pay all untaken holidays on top of any redundancy notice period. 

Thank you for any help! 
Dan. 

General_Grant

They tell you to take your holiday during your notice period.  Very simple.  You don't get garden leave plus payment for holiday when you are being told to take the holiday during that period.
What "government helpline" did you get through to?

eits1000

I called the line that helps with redundancy questions, not sure exactly which but it was an official gov helpline. My contract says 2 months notice, so why should I be forced to take holiday during this time? Surely holiday is over and above notice pay?

JReacher1

eits1000 said:

I called the line that helps with redundancy questions, not sure exactly which but it was an official gov helpline. My contract says 2 months notice, so why should I be forced to take holiday during this time? Surely holiday is over and above notice pay?

Why should it be over and above? They have the right to tell you when to take your holiday and they want you to take it during your notice period

eits1000

Well that's essentially cancelling them out. I'm on garden leave so taking holiday makes absolutely no difference to me on terms of pay. I've looked at so many websites and they all say that untaken holiday gets paid on top of notice period and you even continue to accrue whilst on redundancy leave. 

JReacher1

eits1000 said:

Well that's essentially cancelling them out. I'm on garden leave so taking holiday makes absolutely no difference to me on terms of pay. I've looked at so many websites and they all say that untaken holiday gets paid on top of notice period and you even continue to accrue whilst on redundancy leave. 

Untaken holiday does get paid. They can however force you to take the holiday now. 

Look at it from the companies point of view, they’re paying you to sit at home doing nothing. You then expect them to pay you two weeks holidays on top of this. It makes no commercial sense for them to do this?

eits1000

It does... They've made me redundant so I get my two months as per contract. I've also accrued holiday which is a benefit... 

JReacher1

I don’t think you’re understanding. 

The company has to respect your contractual notice which is two months. They’ve chosen to allow you to take it as gardening leave. The company could also insist you go into work every day of this two months period. 

You are also entitled to some holiday days. The company can pay you for this is they wished or instead they can make you take them before you leave. The decision is your company’s and they have done nothing wrong. 

I accept it’s annoying for you but unfortunately that’s not illegal. 

daveyjp

If the Government line is ACAS they are generally excellent in their advice, far better than most small companies who don't have a clue about HR law, which is complicated.

You are entitled to your paid holiday.  They should ask you to take it before the 2 months gardening leave start and pay you, or pay you for the leave you couldn't take at the end of the two months gardening leave.

If during the gardening leave period you accrue further annual leave this should also be accounted for.

eits1000

daveyjp said:

If the Government line is ACAS they are generally excellent in their advice, far better than most small companies who don't have a clue about HR law, which is complicated.

You are entitled to your paid holiday.  They should ask you to take it before the 2 months gardening leave start and pay you, or pay you for the leave you couldn't take at the end of the two months gardening leave.

If during the gardening leave period you accrue further annual leave this should also be accounted for.

Thanks for this reply @daveyjp! I'm a bit confused... They didn't ask me to take any holiday they just quoted the employment contract (as per my original post) when I questioned them. So are you saying that I could yet get my holiday paid out on top of my 2 months gardening leave? If course I could take it within those 2 months but I'd rather be paid for them..

Thanks! 

JReacher1

daveyjp said:

If the Government line is ACAS they are generally excellent in their advice, far better than most small companies who don't have a clue about HR law, which is complicated.

You are entitled to your paid holiday.  They should ask you to take it before the 2 months gardening leave start and pay you, or pay you for the leave you couldn't take at the end of the two months gardening leave.

If during the gardening leave period you accrue further annual leave this should also be accounted for.

I don't want to be rude but this is just not right.  

Gardening leave is the same as serving your notice.   The OP is not entitled to be paid for their holiday because these refuse to take it during their notice period!

I agree about ACAS but i suspect the query to them wasn't clear and they were just asked if the company must pay any unused holiday..  The answer is yes if this holiday is not taken.

OP they're not going to pay you for unused holiday if they insist you take it during your notice period and you refuse