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  • FIRST POST
    • sxp842
    • By sxp842 7th Jan 18, 11:11 PM
    • 26Posts
    • 11Thanks
    sxp842
    Can employer deduct holiday pay from final salary?
    • #1
    • 7th Jan 18, 11:11 PM
    Can employer deduct holiday pay from final salary? 7th Jan 18 at 11:11 PM
    Hi

    Just looking for some advice. Iíve handed my notice in and Iím on a 3 month notice period, due to leave 4th April. My employer has said that Iíve taken too much holiday and some money will be deducted from my final pay cheque. (Iíve taken 10 days out of 15 days so far). Can they do this? I read somewhere that an employer can only do this if itís agreed in writing, but I canít see anything about this in my contract.

    I get 20 days holiday, plus bank holiday, plus the office is closed between xmas and New Years. This gave me a total of 30 days holiday this year inc bank holidays.

    I started the job on 4 sept 2017 and my last day will 4 April 2018. I accrue holiday on a monthly basis, and our holiday year runs 1 June to 31 May.

    Also, I handed in my notice during my probation period. My contract states that during probation they can give me a weekís notice, but it is silent about how much notice I can give during probation. After probation the notice period for both parties is 3 months. My work have therefore said, because I gave notice during my probation, the notice period is 3 months. However, they have also said that this might be shortened if they find a replacement for me sooner. But they said it in such a way that made it sound like they would just tell me when I should go, it seemed like I donít get any say in when I go.

    In this situation, technically what are my rights with my notice period?

    Thanks
Page 1
    • mr_munchem
    • By mr_munchem 8th Jan 18, 12:36 AM
    • 95 Posts
    • 33 Thanks
    mr_munchem
    • #2
    • 8th Jan 18, 12:36 AM
    • #2
    • 8th Jan 18, 12:36 AM
    Have a read of your contract, often over use of holidays and paying this back is often covered in there. Without an agreement in writing, or a legal obligation, your employer cannot do this
    • hcb42
    • By hcb42 8th Jan 18, 5:36 AM
    • 5,806 Posts
    • 3,522 Thanks
    hcb42
    • #3
    • 8th Jan 18, 5:36 AM
    • #3
    • 8th Jan 18, 5:36 AM
    if you have taken more holidays than you have accrued then no you will not be paid for them. That is reasonable
    • getmore4less
    • By getmore4less 8th Jan 18, 6:55 AM
    • 32,192 Posts
    • 19,352 Thanks
    getmore4less
    • #4
    • 8th Jan 18, 6:55 AM
    • #4
    • 8th Jan 18, 6:55 AM
    Statutory holidays for the accrual on termination accrue from day one to the end of employment

    Statutory monthly accrual during first years or contractual accrual is something different and must not be less than statutory accrual.

    Work period 4 Sept to 4 April (assume Mon-Fri)

    That is 30.6 weeks or 7 months prorata statutory is 16.42 or 16.33 using those 2 methods so the contractual accrued needs to be around that or more.

    Based on 30.6weeks it would be 17.65/17.5

    You will have used 5 BH and 3 shutdown days so how much or the rest have you used?

    Give the shutdown needs 3 day on top of the 2 BH but they only give two extra how is the contract written for those days it may be you have only used 1 from the 28 day not 3 from 30 prorata.

    ie. if 1 from 28 you have used 6 of the 16.xx and not 8 from the 17.xx

    Have a good read of the contract(VERY carefully) for notice period if they have messed up and not put a notice period in for the probation AND explicitly say that the notice after probation is 3 months then during probation that would be statutory notice of 1 weeks

    Given they have explicitly said after probation both notice is equal both sides 3 months reasonable to concur the t the intention was to be equal during probation.

    Once you establish that you can play along with the 3 months and when you get a job/want to leave adjust it to one week.

    Get whatever they say in writing if they say you are on 3 months then they have to pay that even if they want you to leave sooner(Garden leave or PILON) do not agree to leave early unless you need to.


    On the pay back overused holiday the legislation is in the WTR 14.4
    http://www.legislation.gov.uk/uksi/1998/1833/regulation/14/made

    (4) A relevant agreement may provide that, where the proportion of leave taken by the worker exceeds the proportion of the leave year which has expired, he shall compensate his employer, whether by a payment, by undertaking additional work or otherwise.
    Last edited by getmore4less; 08-01-2018 at 7:04 AM.
    • sxp842
    • By sxp842 8th Jan 18, 8:50 AM
    • 26 Posts
    • 11 Thanks
    sxp842
    • #5
    • 8th Jan 18, 8:50 AM
    • #5
    • 8th Jan 18, 8:50 AM
    Thanks for the replies everyone.

    So my employer can not deduct my holiday pay unless my contract explicitly states? I canít see it mentioned anywhere in my contract, but I might ask my employer to point out the relevant clause to me.

    With my notice period, my employer has already stated in an email that my notice period is 3 months, but this might be reduced as they already have someone in mind for the role. Given that they have said this in writing, would I be entitled to ask for pay in lieu of notice if they asked me to leave earlier?

    I donít want to be difficult with them, but I donít feel like they are being very straight with me.
    • paddedjohn
    • By paddedjohn 8th Jan 18, 8:53 AM
    • 7,153 Posts
    • 7,798 Thanks
    paddedjohn
    • #6
    • 8th Jan 18, 8:53 AM
    • #6
    • 8th Jan 18, 8:53 AM
    If you have been over paid (which you will have if you have taken too many holidays) then your employer is entitled to take that money back.
    Be Alert..........Britain needs lerts.
    • sxp842
    • By sxp842 8th Jan 18, 9:02 AM
    • 26 Posts
    • 11 Thanks
    sxp842
    • #7
    • 8th Jan 18, 9:02 AM
    • #7
    • 8th Jan 18, 9:02 AM
    Sorry, also forgot to say - re holiday taken, I have taken 12 days annual leave, 3 shut down, 3 bank holiday = 18 days total.

    My contract doesnít specifically state that the 3 month notice period starts after the probation period. There is just a probation clause for new starters, and then a seperate clause about new starters. My 3 month probation got extended by a further 3 months so I am still within my probation period (it ends on 1st March, but my 3 month notice period ends on 1st April). I have set out the relevant clauses below:

    "PROBATIONARY PERIOD (NEW STARTERS ONLY)" \f C \l "1"
    Your employment is subject to a probationary period during which your suitability will be assessed. Your employment will be subject to review after three months. During this period, and until we confirm that your probationary period has been completed, we may terminate your employment on not less than one weekís notice. If at the end of your probationary period we are satisfied with your progress it will be confirmed to you in writing that you will become a permanent employee. If we are not satisfied then we may continue your probationary period for up to a further six months.

    TERMINATION OF EMPLOYMENT" \f C \l "1"
    22.1 Either party shall be entitled to determine this contract by giving the following minimum written period of notice:-
    22.1.1 three months' notice
    !!!8203;
    22.2 We reserve the right to pay net basic salary, i.e. after PAYE deductions, in lieu of notice.
    • sxp842
    • By sxp842 8th Jan 18, 9:08 AM
    • 26 Posts
    • 11 Thanks
    sxp842
    • #8
    • 8th Jan 18, 9:08 AM
    • #8
    • 8th Jan 18, 9:08 AM
    Iím a bit confused about people who are saying that I have to pay back and extra holiday I have taken because the government website says the following :

    If a worker has taken more leave than theyíre entitled to, their employer must not take money from their final pay unless itís been agreed beforehand in writing. The rules in this situation should be outlined in the employment contract, company handbook or intranet site.

    My contract is silent about this, but I need to check the office manual. Assuming it is also silent, then given the above, how is deduction of holiday pay justified?

    Iím not saying it isnít justified, I just donít understand the legal basis behind it given what the government website says.

    Thanks
    • getmore4less
    • By getmore4less 8th Jan 18, 9:25 AM
    • 32,192 Posts
    • 19,352 Thanks
    getmore4less
    • #9
    • 8th Jan 18, 9:25 AM
    • #9
    • 8th Jan 18, 9:25 AM
    The WTR say they can't take money from your wages or have you work for nothing unless there is a contractual arrangement to do that.

    If those that think otherwise can point to the relevant legislation that allows it it would be useful for the OP and others that need to update their understanding of the current laws on this.
    • sangie595
    • By sangie595 8th Jan 18, 9:33 AM
    • 4,679 Posts
    • 7,909 Thanks
    sangie595
    This is a "cake and eat it" situation. You want not to have three months notice (the contract as quoted is clear, your notice is three months); you want to be let go earlier but paid for the whole three months; and you don't want to pay back holiday that you owe. So here's how it works in reality. They can dismiss you with a weeks notice, so yes, they can counter your resignation by dismissing you with a weeks notice and no, you won't be paid for the rest of the three months. Unless there is something in writing they shouldn't deduct from final salary - but they probably will. That would leave you with only the option of suing them - and I'd expect them to them counter sue you, and that will be the end of that!

    Unequal notice periods are commonplace, and there is nothing in law that says they can't operate this system.

    Your rights are very few, and I'd suggest that trying a "rights" approach is more likely to end up rebounding on you. Especially if you ever need a reference from them. It can be surprising how things can come back to bite you, even years later, that you didn't expect. Compromise and negotiation are a better route - particularly when you have very little on your side!
    • MH1927
    • By MH1927 8th Jan 18, 9:40 AM
    • 18 Posts
    • 9 Thanks
    MH1927
    It looks like they cannot remove the pay from your wages.

    However, they are entitled to utilise the Small Claims Court to recover the overpayment.

    If its a small amount they may not bother, but if they do and win they will likely be allowed to add the fess.
    • sangie595
    • By sangie595 8th Jan 18, 9:43 AM
    • 4,679 Posts
    • 7,909 Thanks
    sangie595
    The WTR say they can't take money from your wages or have you work for nothing unless there is a contractual arrangement to do that.

    If those that think otherwise can point to the relevant legislation that allows it it would be useful for the OP and others that need to update their understanding of the current laws on this.
    Originally posted by getmore4less
    Yes. But there is a substantial difference between what an employer should not do, and what an employer does. And an even bigger difference in terms of what you can do about it! As I have said, if the employer takes it from the wages, what can the OP do about it? Because they do owe the money. So taking it to court where they will be counter sued is not an option - or not one that seems to be sensible anyway. Plus, if the employer wishes to get heavy handed, the employer can sue them and add their costs to the claim, and if the OP then doesn't pay up the increased amount it ends up in enforcement, impacting on credit ratings etc. So what starts out as owing a few days pay back ends up as an increased debt and something that can have an adverse effect on their ability to obtain credit, mortgage etc. This hardly seems a sensible approach. I'd suggest that standing on their legal rights to not have money deducted may be "correct" - but it is not likely to be productive. They still owe the money. It still has to be paid back.
    • Gavin83
    • By Gavin83 8th Jan 18, 11:42 AM
    • 5,170 Posts
    • 8,422 Thanks
    Gavin83
    I agree with a few of the others. You seem to be interpreting it as you not being required to pay back the holiday, that isn't the case. Technically speaking it's looking like they can't take it from your final pay but you do still owe it. If they do take it from your final pay there is little you can realistically do about it. You can sue them but you'll end up in a much worse position. Besides, given the length of time you've been there and the holiday you've taken it shouldn't be a large deduction.
    • TBagpuss
    • By TBagpuss 8th Jan 18, 11:55 AM
    • 6,570 Posts
    • 8,539 Thanks
    TBagpuss
    As Sangie says, if you have been overpaid (because you have taken too much holiday) then you have to repay the company, The only legal issue is whether they are entitled to automatically deduct it, or whether they should pay it and then claim it back from you.
    Unless you really want to burn your bridges with them it's probably not a good idea to challenge this, although you could, if you wished, raise it as a question, and mention that while you do, in fact, consent to them adjusting your pay as you recognise that you have taken more holiday than you've accrued, you couldn't actually find anything in your contract or the hand book explicitly allowing this.

    similarly with the notice, in what you've quoted, it is pretty clear. They can give you a week's notice during you probation period, but you have to give them 3 months. (And there is nothing stopping them giving you that week's notice while you are in your 3 month notice period)
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