Holidays During Gardening Leave

Katebarker89

I was on gardening leave for my notice period of 5 weeks. I had 15.5 days holiday left. On the email from my boss, he writes ‘Final monies which will include any accrued holiday pay will be paid into your bank account…’ I took this to mean holiday pay on top of 5 weeks wage. But they haven’t paid anything extra. I have asked and he said the holidays were taken in the gardening leave. What are your thoughts?

LinLui

Difficult one,  to be honest. My inclination is to say that unless he specifically said that holiday was used during gardening leave,  or it is a contractual term / policy,  then you should be paid. Whether you could enforce that legally might be an entirely different matter.

Hoenir

When you placed on gardening leave what was laid out in writing. Normal practice is for the employer to demand that the leave is taken. 

DullGreyGuy

Hoenir said:

When you placed on gardening leave what was laid out in writing. Normal practice is for the employer to demand that the leave is taken. 

Not sure if it's normal practice to require the holiday to be taken during it but surely they'd have to communicate 1) that this is happening and 2) which dates are being counted as holiday. 

Garden leave requires you to be available for work and you can be asked to recommence work during it. If you are officially on holiday then this can only happen if the employer cancels the holiday which requires them to give notice equal to the length of the holiday. This requires the dates to be clearly stipulated else the employee has the worst of all worlds as can't travel away, can't have a bottle of rum for breakfast (or whatever else may float their boat) because they must be available/fit for work if not told they are on hols. Likewise were you sick during the period you'd need to know if it was garden leave time or holiday time. 

Undervalued

DullGreyGuy said:

Hoenir said:

When you placed on gardening leave what was laid out in writing. Normal practice is for the employer to demand that the leave is taken. 

Not sure if it's normal practice to require the holiday to be taken during it but surely they'd have to communicate 1) that this is happening and 2) which dates are being counted as holiday. 

Garden leave requires you to be available for work and you can be asked to recommence work during it. If you are officially on holiday then this can only happen if the employer cancels the holiday which requires them to give notice equal to the length of the holiday. This requires the dates to be clearly stipulated else the employee has the worst of all worlds as can't travel away, can't have a bottle of rum for breakfast (or whatever else may float their boat) because they must be available/fit for work if not told they are on hols. Likewise were you sick during the period you'd need to know if it was garden leave time or holiday time. 

One could debate normal / common / general etc practice but it is certainly one of those!

Equally, although what you say about garden leave is technically correct, I think the number of times an employee is called back in at short notice can be counted on the fingers of one hand.

Depending on the company, I would have thought that the employer is quite likely to claim that the OP was instructed to take her holiday. Nothing says such an instruction has to be in writing.....

400ixl

They should have given you clear instructions as to what gardening leave means.

Usually it means you have to be available for all contractual hours and if you want to be un-available, you have to use your annual leave accrual to do so. In this case, any unused holiday should be paid.

They can determine you don't have to be available and that any accrued holiday will be used against that. Then they don't have to pay it on top.

What were the terms of your garden leave beyond what you have put in the opening post. That would suggest the former, but were you asked to be available in case you were called up?

DullGreyGuy

Undervalued said:

DullGreyGuy said:

Hoenir said:

When you placed on gardening leave what was laid out in writing. Normal practice is for the employer to demand that the leave is taken. 

Not sure if it's normal practice to require the holiday to be taken during it but surely they'd have to communicate 1) that this is happening and 2) which dates are being counted as holiday. 

Garden leave requires you to be available for work and you can be asked to recommence work during it. If you are officially on holiday then this can only happen if the employer cancels the holiday which requires them to give notice equal to the length of the holiday. This requires the dates to be clearly stipulated else the employee has the worst of all worlds as can't travel away, can't have a bottle of rum for breakfast (or whatever else may float their boat) because they must be available/fit for work if not told they are on hols. Likewise were you sick during the period you'd need to know if it was garden leave time or holiday time. 

One could debate normal / common / general etc practice but it is certainly one of those!

Equally, although what you say about garden leave is technically correct, I think the number of times an employee is called back in at short notice can be counted on the fingers of one hand.

Depending on the company, I would have thought that the employer is quite likely to claim that the OP was instructed to take her holiday. Nothing says such an instruction has to be in writing.....

As I said, I'm not sure... doesn't mean I am challenging it is. 

Fully called back, I'd agree, but have on a number of occasions known them to be called in (not necessarily in person) to a meeting or to explain something to the person they handed over to etc. 

They may have instructed them to take the holiday but that still requires dates to be requested and approved or if the employee fails to do that to inform them that the employer has set their holidays to be certain dates.  

Brie

Of the several times I've been under threat of redundancy (more than 1 employer) it has always been clear that any holidays accrued up to the end of your final day with the employer have to be taken while you are still working (aka actually in the office) or will be assumed to be taken during any garden leave.  This has usually resulted in a rush for all employees about to be made redundant to take their holidays before the garden leave begins.  

Obviously it may be less clear if a place of work shuts suddenly (thinking of Wilkos closing etc) so there's no chance to take holidays before any garden leave, if there was any.  

Net result was the last (& final) redundancy for me I ensured I'd taken as much of my holiday prior to having to hand in my laptop, mobile, badge etc before going on garden leave.  I was a couple of days short but I was lucky in that the garden leave was generous and in any of the company's previous rounds of shedding hundreds of employees I only knew of 1 individual who had been asked back.  Obviously if the garden leave was 1 week and I had 3 weeks holiday left they would have been obliged to pay 2 weeks in my final pay.

DullGreyGuy

Brie said:

Obviously it may be less clear if a place of work shuts suddenly (thinking of Wilkos closing etc) so there's no chance to take holidays before any garden leave, if there was any.  

Wilko was insolvent so employees would receive their redundancy money, notice period and holiday from either the receiver or the government depending on what was left in the piggy bank