Redundancy and accrued holiday pay.....what date must employer give notice to take holiday

Molly56

Just working out a conundrum and need some help.....
An employee is given 12 weeks notice starting on Monday 3rd Aug and terminating on Sunday 25th October
He has 23 days unused accrued holiday to date of termination
His contract which is subject to drivers hours rules indicates a maximum of 6 days per week. Drivers hours dictate that drivers must have a minimum of 2 days rest every other week so to take 23 days would mean 6 days + 5 days + 6 days + 5 days + 2 days. 

Counting backwards I make that to be that the firs day of leave would have to be 21st Sept in order to take all of the accrued annual leave within the notice period. 

My question is.....on what date precisely would the employer need to give notice to the employee in writing in order to request that he use up his annual leave within the notice period and therefore avoid paying holiday pay as part of redundancy package

jackieblack

To require you to take 23 days holiday, they would need to give you 46 days notice (whatever date that works out to be)

Molly56

Oops....my error 23 days   = 6 days + 5 days + 6 days + 5 days + 1 day
so first day of annual leave to be taken would be Sunday 27th Sept.......contract states week goes from a Monday to a Sunday and employee to work any days of week as required due to nature of business.....is not a Mon - Fri type of job

Molly56

jackieblack said:

To require you to take 23 days holiday, they would need to give you 46 days notice (whatever date that works out to be)

I assume this is calendar days and I count back from first day of leave to be taken 

getmore4less

what does the contract say? that can override statutory notice, 
eg a clause that says we may require you to use holiday during notice periods means there is no need for any further notice.

In situations where there is not enough time to give statutory notice for a big lump split the holiday into smaller blocks.
With 12 weeks notice  and  23 days  notice to take this friday off followed by  a 3 day week for 11 weeks uses up all 23 days 

Adjust as needed to fit the work schedules.or move a bigger block closer to the termination date.
maybe give the employee the option to chose days then allocate those that are left. 
 

Molly56

Am asking from the employee point of view in the hope that if the employer fails to realise and give proper notice then there will be unused holiday left at the end for which employee can then claim for days not taken.....
....am also assuming that days have to be taken according to usual working week hence explanation above of drivers hours requirements re rest days required .....contract says 6 day week but drivers hours require two day break one week with one day break in following week....drivers hours would be overriding condition given nature of work

getmore4less

What does the contract say about holidays.

which driver hours are you referring to? 
Does it really say 2 consecutive days rest in the same week(defined as Mon-Sun in driver regs)?

Many people don't understand some of the things you can do with rest periods for the regular working rest periods you can do 24 days in a row and still comply.

Driver hours just say the max they can work 
could 6-2-6-6-2-6  meet the 2 days every 2 weeks and a 6 day week

getmore4less

Have they been asked to book the holidays or told they need to take them in the consultation/notice

Molly56

getmore4less said:

Have they been asked to book the holidays or told they need to take them in the consultation/notice

Not specifically.......and not mentioned in any written correspondence on the matter......as far as his employer is concerned he is saying he is not entitled to any annual leave. 

The other fact is that the employer has taken away the employees ability to do his job....he is a coach driver and the employer has taken the vehicle that he drives away to sell or enter into a lease agreement. 

Whilst the employee was and is prepared to work throughout his notice period the employer has effectively removed that option. Don’t know if this is a valid argument should it get to a tribunal but checking it out. 

To return to your original question .....nothing in writing specifically telling employee to take any accrued annual leave in notice period....employer is not even addressing it

Molly56

Have now received notice from employer to take notice during notice period as follows.....

48 days notice to take 24 days annual leave......notice period from 10th August to 26th Sept with annual leave to be taken from 28th Sept to 21st Oct

Replued to point out this was incorrect as it didn’t include rest days that employee would be entitled to (2 days per week) and that result would be 4 days of annual leave on termination of employment which would need to be paid at full pay

Have just received reply from employer saying he has taken advice and can give another notice period to take 4 days from 24th to 27th Aug ....notice period stated as 13th to 20th August

How can this be correct as effectively double counting days in notice period......

Thrugelmir

Perfectly normal for accrued holiday entitlement to be taken before employment terminates. If circumstances allow, which they obviously do.