Carrying over annual leave from last year during Coronovirus

mickym

Hi,
My employer and I have a difference of opinion with how my unused holiday from last year is allowed to be carried over.

I work part time and contracted to work 2 days a week (8 hours a day), Tuesdays and Thursdays. I am allocated 11.2 days annual leave a year.
As I work those days, Bank Holiday Mondays and Fridays dont usually affect my allowance.

I took 6 days from my allowance last year as I was furloughed for a lot of it, so I believed I have 5.2 days to carry over to take off this year (or over next 2 years as mentioned in Governemtn rule change).

My employer has said this is too much.

Their explanation is as follows:

As a part time employee on 40% hours, your contractual leave allowance is 11.2 days annual leave per year. This will include any bank holidays that you would work as part of your hours. This is equal to 90 hours.
 
The error is when we talk about carry over of leave. This is due to an oversight on my part and I apologise for it.
 
I agreed to allow the staff to carry over one week’s worth of leave. For a FT employee this is 5.2 days or 42 hours. For a PT employee on 40% hours, this must be prorated to 2.05 days or 16.8 hours. To allow you to carry over 5 days’ worth of leave would be equivalent to a full-time employee carrying over 13 days leave. This would be unfair on other staff.
 
I apologise for not noticing this before however we must pro-rate leave appropriately for part-time staff members in all cases. You will therefore have a total allowance of 13.25 days or 107 hours leave this year.

I spoke to ACAS this morning and they agreed that I should have 5.2 days to carry over as they have worked out my carry over annual leave on a full time employees terms rather than mine where I dont usually work bank holidays.

I would be interested in what others may think, incase I have over looked anything?

Many thanks

TBagpuss

I think that your 11.2 days per year is your statutory entitlement so I am not sure that they can limit it.
Had they dealt with this before the end of the holiday year they could have required you to take the leave in the current year, so as not to carry over more than 2 days, but I don't think they are allowed to operate a 'use it or lose it' process which is the effect of what they are saying.

For what it is worth, I think the same is true of full time employees - if they told full time employers they could only carry over 1 week, then they should have ensured that people took any remaining time , they can't just make them lose that time.

I would suggest that you go back to them to point this out and perhaps look at a compromise - maybe take 3 of the 5 days you have to carry over by the end of March, rather than retaining them for a longer period, so they are used and you are not carrying over too much into the next year or so. 

I don't think the bank holidays are relevant - they could have required you to take those as holiday even if you were furloughed but they would have had to pay you your full rate (not 80%) for them if they had, and can't so it retrospectively. 

mickym

Thank you Bagpuss. 
You echo my thoughts.
ACAS said that even though there is a chance they could of boosted pay on Bank Holidays through furlough (i do need to double check this), that this isnt actually legal, as they are boosting the pay on days that I do not work, so should of really checked with me first, and even if they did, I still leagally should have the days to carry over.

Something I need to get clarified with them is what they mean by "I agreed to allow the staff to carry over one week’s worth of leave."

Surely if an employee has over a weeks worth of leave left, they would be entitled to carry it over? its not upto the manager to decide that?

Thanks again for your advice.

getmore4less

The error here is when we talk about carry over of leave. This is due to an oversight on my part and I apologise for it.
 
This is the key point.

saying sorry is not good enough

They led you to believe you could carry over more so you did not need to book them and they failed to allocate them for you before the holiday year ended. 

Ask them as it was their error you did not take your statutory minimum holiday during the holiday years how  are they going remedy that situation(their only retrospective option is to carry over).

They had the opportunity to have to take holiday during the year even if on furlough they just had to pay you 100% for those days.

If they ever topped up furlough pay for any of your furlough weeks they should have told you that was using up holiday.

mickym

Ive been reading this : https://www.gov.uk/guidance/holiday-entitlement-and-pay-during-coronavirus-covid-19

Its slightly conflicting, as it states that holiday should be taken during furlough time if possible, but I wasnt told this was neccessary and was our choice to do so at the time.

These are interesting parts:

Holiday pay, whether the worker is on furlough or not, should be calculated in line with current legislation - see the standard guidance, based on a worker’s usual earnings. The underlying principle is that a worker should not be financially worse off through taking holiday. Where a worker has regular hours and pay, their holiday pay would be calculated based on these hours. If they have variable hours or pay, their holiday pay is calculated as an average of the previous 52-weeks of remuneration excluding weeks in which there was no remuneration.

This seems to back up my thinking that bank holiday shouldnt be part of their equation for me, as my working days being in the middle of the week are rarely bank holidays.

Carrying leave forwards: how new legislation has changed the rules

The government has passed new emergency legislation to ensure businesses have the flexibility they need to respond to the coronavirus pandemic and to protect workers from losing their statutory holiday entitlement (The Working Time (Coronavirus) (Amendment) Regulations 2020, laid before Parliament on 27 March 2020). These regulations enable workers to carry holiday forward where the impact of coronavirus means that it has not been reasonably practicable to take it in the leave year to which it relates.

Where it has not been reasonably practicable for the worker to take some or all of the 4 weeks’ holiday due to the effects of coronavirus, the untaken amount may be carried forward into the following 2 leave years. When calculating how much holiday a worker can carry forwards, employers must give workers the opportunity to take any leave that they cannot carry forward before the end of the leave year.

I wasnt given that opportunity as I wasnt made aware.
I may suggest as a compromise that they allow me to take the 5.2 days I believe I should have over the duration of 2 years.

getmore4less

The legislation already allows for carry over the COVID addition is to allow more for longer.

They have the option to allow carry over so they can't use you can't carry over.

You need to be making it clear that because of their error you were not able to take your statutory leave and they need to fix that.
There only sensible option is carry over for how long is up to them,  if still on furlough the simple olution is pay them now.

Just to clarify something what holiday do full timers get?
That reply says a week is 5.2 days, statutory is capped at 5 days which suggests they may get more than 5.6 weeks

davilown

Are you mixing up with holiday carried over and holiday due paid as you haven’t taking it? Will your employer be paying you for the missed leave that you can’t carry forward?

getmore4less

davilown said:

Are you mixing up with holiday carried over and holiday due paid as you haven’t taking it? Will your employer be paying you for the missed leave that you can’t carry forward?

That is a problem for the employer as it is not lawful to buy out statutory holiday(except on termination).
The OP could agree to get paidbut the employer still carries a risk.

mickym

getmore4less said:

davilown said:

Are you mixing up with holiday carried over and holiday due paid as you haven’t taking it? Will your employer be paying you for the missed leave that you can’t carry forward?

That is a problem for the employer as it is not lawful to buy out statutory holiday(except on termination).
The OP could agree to get paidbut the employer still carries a risk.

They are only offering me 2.05 days off, no extra payment.

mickym

Thank you for your replies.

From what I can work out they are saying to me:

Full time staff were told that they could only carry over a week = 5 days / 42 hours.
Im presuming because of a communication error I wasnt told that explicitly or in writing, and only in conversation was said to me I'd be allowed to carry over approximately 40hours for this year.

The issue seems to be that they forgot that I work part time, and they meant all full time staff can carry over 42hrs, whearas me, because I work 2 days a week, they will only let me carry over 2.05days. That was never made clear until this week.

The other issue here, is even if they did say they told me to run it down, one other staff member took most of Dec off, and we arent allowed to have more than one person off. So that to me seems to go against the Government guidelines that I should of been given the opportunity to run it down and wasnt/couldnt.

getmore4less

I have said  what you need to say to them in the my second post.

You need to be making it clear that because of their error you were not able to take your statutory leave and they need to fix that.