Term-time pay adjustment not received when leaving job part-way through the year

HasG

Hi everyone,

This is for my partner who worked for a local NHS trust.

She was on a 12 month fixed-term, term-time only contract (39 weeks) with 5.6 weeks annual leave entitlement. She worked 37.5 hours Mon-Fri during term-time. But gets paid 32.4 hours per week, as per the contract in 12 equal monthly salaries.

Worked between Jan to mid-June in 2023. When she left in mid-June, she got paid for the whole month of June (overpayment of 11 days). Next month, we received a request from the central NHS team that does the payroll (NHS SBS) to pay back the overpayment of salary. There is no issue with that.

In July 2023, we replied to NHS SBS that she is owed pay for the extra hours worked since she left the job part-way through the year, before the summer school holidays began.

We got the standard reply "We have forwarded your email to the Trust and are waiting for their reply. There's nothing else we can do.....".

Called ACAS in Nov 2023 and was told since it has been more than 3 months of leaving the job, it is too late to go to Employment Tribunal. Was advised to make a claim in small claims court.

Email reminders went back and forth between Jul 2023 till Oct 2024. Same response everytime. "We apologise for the delay. We have asked the trust to look into this matter for you". In July 2024 told them to give us the relevant authority's email address to take this up with them directly. Was told "Sorry, but we are unable to give inidviduals' email addresses to you. You have to go through us..."

In Sep 2024, asked NHS SBS is there anything else they can do such as escalation. No reply.

Finally, in Oct 2024, we sent "Notice before legal action" and gave them 28 days to respond. Got reply saying they are taking this very seriously..bla blah blah....No further reply after 28 days.

In early November, sent another reminder: "Notice before taking legal action - reminder" and gave them a further 14 days to respond. Gave a breakdown of hours worked, days not worked, pro-rata annual leave entitlement, how much she should be paid, how much she got paid, the salary in arrears. See Table below. Gave them wife's bank account details and told them to pay the salary arrears within 14 days.

Got another response saying they are taking this very seriously, they have forwarded this to the Trust....blah blah blah..No further reply after 14 days. In late Nov 2024, sent another reminder "Notice before taking legal action - Final reminder" and gave further 7 days to respond.

In Dec 2024, got a response from the local Trust's Contracts Manager who claim she has checked with HR and confirmed that wife's contracted pay was 32.4 hours/week. Gave a breakdown of what wife was paid in each of her payslips between Jan-June 2023 and informed there is nothing overdue except for the amount she was overpaid in June which she needs to pay back. The contents in the table of breakdown which we sent in our letter of demand was completely ignored.

Annual leave entitlement in days	27
Pro-rata annual leave from 3 Jan to 19 Jun 2023	12.4
School holidays not worked between 3 Jan to 19 Jun 2023	17
Extra days of leave taken after adjusting for pro-rata annual leave entitlement	4.6
Hours worked per week	37.5
Hours paid	32.4
Hours in arrears per week	5.1
Hours not paid for between 3 Jan - 19 Jun 2023	123.07
Less extra days of annual leave converted to hours	-37.17
Total hours in arrears	85.90
Total salary in arrears	£  XXXX.XX

Have contacted several local employment solicitors who told us their legal costs are far more than the amount we claim. So we have to go to small claims court all alone.

Please advise whether we can claim the amount above at small claims court? The overpayment of June 2023 salary we have to pay. We understand that.

marcia_

HasG said:

Hi everyone,

This is for my partner who worked for a local NHS trust.

She was on a 12 month fixed-term, term-time only contract (39 weeks) with 5.6 weeks annual leave entitlement. She worked 37.5 hours Mon-Fri during term-time. But gets paid 32.4 hours per week, as per the contract in 12 equal monthly salaries.

Worked between Jan to mid-June in 2023. When she left in mid-June, she got paid for the whole month of June (overpayment of 11 days). Next month, we received a request from the central NHS team that does the payroll (NHS SBS) to pay back the overpayment of salary. There is no issue with that.

In July 2023, we replied to NHS SBS that she is owed pay for the extra hours worked since she left the job part-way through the year, before the summer school holidays began.

We got the standard reply "We have forwarded your email to the Trust and are waiting for their reply. There's nothing else we can do.....".

Called ACAS in Nov 2023 and was told since it has been more than 3 months of leaving the job, it is too late to go to Employment Tribunal. Was advised to make a claim in small claims court.

Email reminders went back and forth between Jul 2023 till Oct 2024. Same response everytime. "We apologise for the delay. We have asked the trust to look into this matter for you". In July 2024 told them to give us the relevant authority's email address to take this up with them directly. Was told "Sorry, but we are unable to give inidviduals' email addresses to you. You have to go through us..."

In Sep 2024, asked NHS SBS is there anything else they can do such as escalation. No reply.

Finally, in Oct 2024, we sent "Notice before legal action" and gave them 28 days to respond. Got reply saying they are taking this very seriously..bla blah blah....No further reply after 28 days.

In early November, sent another reminder: "Notice before taking legal action - reminder" and gave them a further 14 days to respond. Gave a breakdown of hours worked, days not worked, pro-rata annual leave entitlement, how much I should be paid, how much I got paid, the salary in arrears. See Table below. Gave them wife's bank account details and told them to pay the salary arrears within 14 days.

Got another response saying they are taking this very seriously, they have forwarded this to the Trust....blah blah blah..No further reply after 14 days. In late Nov 2024, sent another reminder "Notice before taking legal action - Final reminder" and gave further 7 days to respond.

In Dec 2024, got a response from the local Trust's Contracts Manager who claim she has checked with HR and confirmed that my contracted pay was 32.4 hours/week. Gave a breakdown of what wife was paid in each of her payslips between Jan-June 2023 and informed there is nothing overdue except for the amount she was overpaid in June which she needs to pay back. The contents in the table of breakdown which we sent in our letter of demand was completely ignored. The table is given below.

Annual leave entitlement in days	27
Pro-rata annual leave from 3 Jan to 19 Jun 2023	12.4
School holidays not worked between 3 Jan to 19 Jun 2023	17
Extra days of leave taken after adjusting for pro-rata annual leave entitlement	4.6
Hours worked per week	37.5
Hours paid	32.4
Hours in arrears per week	5.1
Hours not paid for between 3 Jan - 19 Jun 2023	123.07
Less extra days of annual leave converted to hours	-37.17
Total hours in arrears	85.90
Total salary in arrears	£  XXXX.XX

Have contacted several local employment solicitors who told us their legal costs are far more than the amount we claim. So we have to go to small claims court all alone.

Please advise whether we can claim the amount above at small claims court? The overpayment of June 2023 salary we have to pay. We understand that.

 Why do you keep sending reminders instead of starting action in Court? You are just showing them you are not serious. 

HasG

Because the last time I submitted a claim in small claims court back in 2016, I remember reading online that I had to send a few reminders to show the judge I have exhausted resolving this amicably......I just acted the same way from memory.

The point in question is, do we have a case here? Is my partner owed a term-time pay adjustment when leaving part-way through the year?

The contract does not mention any term-time pay adjustment when leaving the job.

cmthephoenix

I suspect it will all come down to what the local policies of the Trust are.
2 points. 5.6 weeks annual leave for 39 weeks seems rather a lot. Regardless of what the local trust policies are they can't take you below national minimum wage for the hours actually worked if that is applicable.

saajan_12

HasG said:

Hi everyone,

This is for my partner who worked for a local NHS trust.

She was on a 12 month fixed-term, term-time only contract (39 weeks) with 5.6 weeks annual leave entitlement. She worked 37.5 hours Mon-Fri during term-time. But gets paid 32.4 hours per week, as per the contract in 12 equal monthly salaries.

Worked between Jan to mid-June in 2023. When she left in mid-June, she got paid for the whole month of June (overpayment of 11 days). 

What was the start and end of the 12 months - was she leaving, or had she worked a full academic year?
Also was the 5.6 weeks supposed to come out of the 39 weeks, or out of the 52 weeks based on the 32.5 hours / week paid? 

Also might it be easier to calculate the whole thing in hours worked + holiday hours accrued, vs the salary received? 

HasG

saajan_12 said:

What was the start and end of the 12 months - was she leaving, or had she worked a full academic year?
Also was the 5.6 weeks supposed to come out of the 39 weeks, or out of the 52 weeks based on the 32.5 hours / week paid? 

Also might it be easier to calculate the whole thing in hours worked + holiday hours accrued, vs the salary received? 

Thanks for the comment.

start date on contract: 3-Jan-2023

(Initially was offered a 12 month fixed-term contract from 1-Jan to 31-Dec. But later offered a revised contract with start date as 3-Jan, which was the first working day of the year).
end date on contract: 31-Dec-2023 (this remained the same)
Leaving date: 19-Jun-2023

The contract says:

"Remuneration and Benefits
Your salary amounts to £XX,XXX.XX. Your salary accrues on a daily basis and is paid monthly in arrears.
The salary quoted in X.X is pro rata of £XX,XXX for your part time post.

Hours of Work
Your standard working week is Term time hours - 37.5 hours per week.

You will be paid on term time only basis. This means you are not required to work a standard 52 week year but you will receive an equal amount of pay each month."

"Annual Leave and Annual Leave Pay
The Annual Leave year runs from 1st April to 31st March.

Your entitlement to paid annual leave for a full annual leave year will be as follows:
On appointment 27 days + bank holidays

Your leave will accrue on a monthly basis. Please refer to the annual leave calculator available on the Trust’s intranet (‘XXXXXX’) for your entitlement for the current leave year.

Your leave entitlement includes paid annual leave on public holidays, which will be pro rata for part time staff. If your normal working pattern falls on a public holiday and you are not required to work you are required to use this entitlement when public holidays fall due.

You are not entitled to receive pay for annual leave not taken.

If you leave the Trust, you will receive payment for annual leave accrued but not taken up until your leaving date."

HasG

cmthephoenix said:

I suspect it will all come down to what the local policies of the Trust are.
2 points. 5.6 weeks annual leave for 39 weeks seems rather a lot. Regardless of what the local trust policies are they can't take you below national minimum wage for the hours actually worked if that is applicable.

Thanks for the reply. Please see above comment for the relevant sections from the contract.

cmthephoenix

HasG said:

Thanks for the reply. Please see above comment for the relevant sections from the contract.

The amounts that you have XX out are relevant.
"Your salary accrues on a daily basis" would appear to be pertinent.

saajan_12

HasG said:

saajan_12 said:

What was the start and end of the 12 months - was she leaving, or had she worked a full academic year?
Also was the 5.6 weeks supposed to come out of the 39 weeks, or out of the 52 weeks based on the 32.5 hours / week paid? 

Also might it be easier to calculate the whole thing in hours worked + holiday hours accrued, vs the salary received? 

"Remuneration and Benefits

Your salary amounts to £XX,XXX.XX. Your salary accrues on a daily basis and is paid monthly
in arrears.
The salary quoted in X.X is pro rata of £XX,XXX for your part time post.

Hours of Work
Your standard working week is Term time hours - 37.5 hours per week.

You will be paid on term time only basis. This means you are not required to work a standard 52
week year but you will receive an equal amount of pay each month."

Not sure why we're X'ing out the amounts from people who are trying to help. The quantum of the amounts help assess how material the discussion is and whether we are getting into below min wage levels for the actual hours worked. 

If well above minimum wage, there may not necessarily be an expectation of pay per hour worked.. eg for a normal full time salaried worker, if a month has more weekend days they still get the same pay even though fewer hours are worked, and the idea is its a monthly salary for a certain pattern but that in the long term it would all average out. In your case, this is buttressed by the fact that the salary is quoted annually (I think, can't tell as its all XXs) and accrues daily (not "per day worked"). 

If so, you would just get paid for 168 days (3 Jan -> 19 Jun) as a % of 365 days. It was presumably your choice to leave just before the summer holidays as opposed to just after. 

HasG said:

saajan_12 said:

What was the start and end of the 12 months - was she leaving, or had she worked a full academic year?
Also was the 5.6 weeks supposed to come out of the 39 weeks, or out of the 52 weeks based on the 32.5 hours / week paid? 

Also might it be easier to calculate the whole thing in hours worked + holiday hours accrued, vs the salary received? 

"Annual Leave and Annual Leave Pay

The Annual Leave year runs from 1st April to 31st March.

Your entitlement to paid annual leave for a full annual leave year will be as follows:
On appointment 27 days + bank holidays

Your leave will accrue on a monthly basis. Please refer to the annual leave calculator available
on the Trust’s intranet (‘XXXXXX’) for your entitlement for the current leave year.

Your leave entitlement includes paid annual leave on public holidays, which will be pro
rata for part time staff. If your normal working pattern falls on a public holiday and you are not required
to work you are required to use this entitlement when public holidays fall due.

You are not entitled to receive pay for annual leave not taken.

If you leave the Trust, you will receive payment for annual leave accrued but not taken up until
your leaving date."

The annual leave year is from 1st April, so in the first 3 months you had ~6.75 days, and then 5.75 days in the last few months. Is there a formal roll over policy - if not then that may limit how many days you had available in the new leave year, and hence may have more days deducted. 

HasG

cmthephoenix said:

The amounts that you have XX out are relevant.
"Your salary accrues on a daily basis" would appear to be pertinent.

Sorry about that. Here are the unredacted amount.

"5.1 Your salary amounts to £23,375.52. Your salary accrues on a daily basis and is paid monthly in arrears.
5.2 The salary quoted in 5.1 is pro rata of £27,055 for your part time post."

There was a salary increase in May or June 2023. New amounts from payslip are:

£28407.00 (prorata: £24543.65)

Old rate upto June 2023 was £13.8364

After June (due to salary increment): £14.5278. Please see payslip snippet below

HasG

saajan_12 said:

Not sure why we're X'ing out the amounts from people who are trying to help. The quantum of the amounts help assess how material the discussion is and whether we are getting into below min wage levels for the actual hours worked. 

If well above minimum wage, there may not necessarily be an expectation of pay per hour worked.. eg for a normal full time salaried worker, if a month has more weekend days they still get the same pay even though fewer hours are worked, and the idea is its a monthly salary for a certain pattern but that in the long term it would all average out. In your case, this is buttressed by the fact that the salary is quoted annually (I think, can't tell as its all XXs) and accrues daily (not "per day worked").

Apologies for that. Here are the amounts -

"5.1 Your salary amounts to £23,375.52. Your salary accrues on a daily basis and is paid monthly in arrears.

5.2 The salary quoted in 5.1 is pro rata of £27,055 for your part time post."

There was a salary increase in May or June 2023. New amounts from payslip are:

£28407.00 (prorata: £24543.65)

saajan_12 said:

If well above minimum wage, there may not necessarily be an expectation of pay per hour worked.. eg for a normal full time salaried worker, if a month has more weekend days they still get the same pay even though fewer hours are worked, and the idea is its a monthly salary for a certain pattern but that in the long term it would all average out. In your case, this is buttressed by the fact that the salary is quoted annually (I think, can't tell as its all XXs) and accrues daily (not "per day worked"). 

If so, you would just get paid for 168 days (3 Jan -> 19 Jun) as a % of 365 days. It was presumably your choice to leave just before the summer holidays as opposed to just after.

It was her decision to leave.

Old rate upto June 2023 was £13.8364

After June (due to salary increment): £14.5278. Please see payslip snippet below

saajan_12 said:

The annual leave year is from 1st April, so in the first 3 months you had ~6.75 days, and then 5.75 days in the last few months. Is there a formal roll over policy - if not then that may limit how many days you had available in the new leave year, and hence may have more days deducted. 

This is from the contract -

"In exceptional circumstances up to one week of basic contracted hours may be carried over to the following year, with the agreement of the manager."

Did not work during the following school half-term breaks -

Feb 13-17 (5 days)

Apr 3-14 (8 days since Apr 7th and 10th were Public Holidays)

May 30-2 Jun (4 days)

Total: 17 days