Holiday pay - 1/260 or 1/365

jamielutz1987

My partner recently finished their notice period (was working until the last day, not on furlough or anything) and at that point had 16 days of unused annual leave accrued. When the ex-employer paid the final pay, there was no mention of the holiday pay in it.

Upon querying, they initially said that the policy says that the leaver needs to take the annual leave during the notice period. My partner had no knowledge of that and said so. After some to and fro they agreed that the policy change had not been communicated to my partner and that they would pay the holiday pay soon. It took a month but they finally paid it, but calculated each day's pay as 1/365 of the annual salary. I'm sure this isn't correct? The last 2 employments that I left calculated it at 1/260 (or 1/261 I don't remember exactly which), as did my partner's ex-ex-employer.

I checked my partner's contract and there is no mention of a fraction in there.

The HR insists that they can calculate at 1/365 and that it is up to them. Is that correct? My partner joined mid-way through a month and the pay for that month was calculated at 1/260 per working day. Surely they can't just pick and choose?

Comms69

I agree with you. 

But here's the thing. Your partner takes them to court and wins. But they refuse references going forward. 

Which is worth more?

jamielutz1987

We are talking about a difference of about £1,600 so it's hard to just let it go. Plus my partner has gone self-employed so (hopefully) will not need references from the ex-employer.

It's tough to just allow people to rip you off.

Comms69

jamielutz1987 said:

We are talking about a difference of about £1,600 so it's hard to just let it go. Plus my partner has gone self-employed so (hopefully) will not need references from the ex-employer.

It's tough to just allow people to rip you off.

Well then dont, take it to court

jamielutz1987

Thanks comms. I'll get my partner to get a firm final response from the ex-employer and make it clear that we will raise a small claim if they continue to stand by their explanation. Just so they have a chance to pay up before we start the formal steps to get a small claim lodged. I think the court requires that all attempts are made to settle prior to going down this route.

zagfles

Sounds like HR don't know what they're doing. See https://www.acas.org.uk/final-pay-when-someone-leaves-a-job/how-holidays-affect-final-pay

Comms69

jamielutz1987 said:

Thanks comms. I'll get my partner to get a firm final response from the ex-employer and make it clear that we will raise a small claim if they continue to stand by their explanation. Just so they have a chance to pay up before we start the formal steps to get a small claim lodged. I think the court requires that all attempts are made to settle prior to going down this route.

That's what a letter before action is for  

zagfles

Or you could read the ACAS site and follow their advice.

jamielutz1987

zagfles said:

Sounds like HR don't know what they're doing. See https://www.acas.org.uk/final-pay-when-someone-leaves-a-job/how-holidays-affect-final-pay

Thanks zagfles, that is very helpful!

Comms69

zagfles said:

Or you could read the ACAS site and follow their advice.

Not sure how an ET would be better? Small claims tends to be much quicker

zagfles

Comms69 said:

zagfles said:

Or you could read the ACAS site and follow their advice.

Not sure how an ET would be better? Small claims tends to be much quicker

Really? What are the relative timescales of an ET compared to small claims? 

What about early concilliation, how long does that usually take?

What are the costs of each?