Holidays during Gardening Leave

Pianoman23

I left my job earlier this year and was told in a letter that I must take my 6 months Notice period as Garden leave. The letter also said I would required to take my 10 days of unused holiday in that period of Garden leave and I should contact company to tel them when I was going to take the 10 days as annual holidays. For various reasons I wasn’t happy about using the holidays and wanted to be paid so I didn’t apply for leave. 

Anyway, I heard no more from the company until I actually left and they’d paid me for the holidays. They than wrote to me a few days later saying they’d made a mistake in paying me the 10 days leave and demanded it back. 

As I didn’t agree in the first place to them making me take the unused holiday and therefore didn’t request or book the 10 days off and they didn’t tell me - so we didn’t agree - the specific dates of any holidays, I think they had no alternative but to pay me in accordance with the Working Tine Directive. 

Am I wrong? 

Thrugelmir

Pianoman23 said:

 I think they had no alternative but to pay me in accordance with the Working Tine Directive. 

Employers are entitled to ask employees to take leave during notice periods. There's no obligation to be paid simply by ignoring the employers request. 

Pianoman23

Thrugelmir said:

Pianoman23 said:

 I think they had no alternative but to pay me in accordance with the Working Tine Directive. 

Employers are entitled to ask employees to take leave during notice periods. There's no obligation to be paid simply by ignoring the employers request. 

“Employers are entitled to ask” 

Asking implies that agreement is needed. I didn’t agree in principle nor was any specific agreement reached as to dates. 

Thrugelmir

Pianoman23 said:

Thrugelmir said:

Pianoman23 said:

 I think they had no alternative but to pay me in accordance with the Working Tine Directive. 

Employers are entitled to ask employees to take leave during notice periods. There's no obligation to be paid simply by ignoring the employers request. 

“Employers are entitled to ask” 

Asking implies that agreement is needed. I didn’t agree in principle nor was any specific agreement reached as to dates. 

If the employer decides to persue the matter further then any outcome will be decided on the basis of reasonableness. Merely said as an observation you had 6 months to provide dates. 

TELLIT01

The employer is entitled to tell an employee to take holiday, not just ask them to.  As long as the employee has been given sufficient notice in order to be able to take holiday, they may not have to pay for leave not taken.  The employee has no entitlement to refuse to take leave and be paid instead.

getmore4less

Pianoman23 said:

Thrugelmir said:

Pianoman23 said:

 I think they had no alternative but to pay me in accordance with the Working Tine Directive. 

Employers are entitled to ask employees to take leave during notice periods. There's no obligation to be paid simply by ignoring the employers request. 

“Employers are entitled to ask” 

Asking implies that agreement is needed. I didn’t agree in principle nor was any specific agreement reached as to dates. 

Approval by the employee is not needed when a company tells the employee to take holiday 

Working time directive    2.a.

although there statutory requires specific days  5. is a catch all as any statutory provision can be amended by contract and other policies.

An instruction to take holiday is reasonable and may be covered by contract/holiday policies anyway.

The company gave you the opportunity to pick the days in case you needed specific days to actually go on holiday.
(garden leave still needs any holidays to be approved as required by contact/policy)

Undervalued

Pianoman23 said:

I left my job earlier this year and was told in a letter that I must take my 6 months Notice period as Garden leave. The letter also said I would required to take my 10 days of unused holiday in that period of Garden leave and I should contact company to tel them when I was going to take the 10 days as annual holidays. For various reasons I wasn’t happy about using the holidays and wanted to be paid so I didn’t apply for leave. 

Anyway, I heard no more from the company until I actually left and they’d paid me for the holidays. They than wrote to me a few days later saying they’d made a mistake in paying me the 10 days leave and demanded it back. 

As I didn’t agree in the first place to them making me take the unused holiday and therefore didn’t request or book the 10 days off and they didn’t tell me - so we didn’t agree - the specific dates of any holidays, I think they had no alternative but to pay me in accordance with the Working Tine Directive. 

Am I wrong? 

Yes you are wrong.

It is irrelevant whether you were "happy" about it or not. They told you to take 10 days leave (which they are entitled to do) and instructed you to tell them which days - which you failed to do. So, in my opinion they are quite entitled to treat ten days of your "garden" leave as holiday.

Undervalued

Pianoman23 said:

Thrugelmir said:

Pianoman23 said:

 I think they had no alternative but to pay me in accordance with the Working Tine Directive. 

Employers are entitled to ask employees to take leave during notice periods. There's no obligation to be paid simply by ignoring the employers request. 

“Employers are entitled to ask” 

Asking implies that agreement is needed. I didn’t agree in principle nor was any specific agreement reached as to dates. 

No, employer are entitled to instruct an employee to take leave simply by giving notice of twice the length of the leave.

So they were far more generous than that and gave you over five months in which to take ten days leave!

Pianoman23

The company gave you the opportunity to pick the days in case you needed specific days to actually go on holiday.

(garden leave still needs any holidays to be approved as required by contact/policy)

Thanks GetMore but what doesn’t seem to fit your reply is what happens where the holiday wasn’t actually taken because there was no agreement to do so? My understanding is that absent a Garden Leave clause in my employment contract Garden leave can only be implemented by mutual agreement (ie a variation to my original contract). Manifestly, I didn’t agree to take holidays by virtue of neither requesting them nor actually taking them. 

So isn’t the real question: did I impliedly agree to the instruction to take holidays despite neither requesting nor actually  taking them? 

Grateful for your opinions and not trying to argue, just understand the logic!

getmore4less

I don't believe garden leave needs consent unless in the contract.

Even then GL  does not replace the contract it only modifies certain parts.

These may include, but may not be limited to, things like

The requirement to attend the office
The requirement to do work
A restriction of contacting other employees, customers and suppliers
Be available to come off garden leave and attend/work(often agreed notice like next day)
...

you are still fully employed under contract

I don't think it would replace the holiday rules unless specifically mentioned.

Does the holiday policy have addition terms for during notice, many have a you may be required to take holiday to override the statutory notice periods.

Pianoman23

Well it’s not a ‘bad decision’ Jill because I’ve been paid and at worst, if I’m not entitled to it, I’ll pay it back.

You haven’t addressed my point about contract variations though. Absent any clause in my contract requiring me to take garden leave,  they had to reach an agreement with me to vary my contract to enable them to make me take GL. So they issued such a letter, the terms of which I did not agree to. 

In the absence of an agreement to the requirement to take GL (and to use untaken holidays in that period) because my contract of employment doesn’t contain such an obligation, I’m struggling to see how the company can enforce the letter (a variation) which didn’t constitute an agreement (from my perspective). If I didn’t agree to the letter (in the contract law sense) then it’s of no effect and the company can only rely on the underlying contract. I know for certain that neither party in any contract can unilaterally change its terms without mutual agreement. 

So again, I ask: on those facts, on what basis can the company compel me to comply with the terms of the letter (in relation to taking unused holiday) in which it required me to take GL?

I’m not a lawyer BTW, though I was a Law graduate (a long time ago). 

I’m guessing from your responses that you’re an HR professional?