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  • FIRST POST
    • kitkatt1982
    • By kitkatt1982 11th Jul 18, 7:25 PM
    • 114Posts
    • 49Thanks
    kitkatt1982
    Can employer demand bonus be repaid?
    • #1
    • 11th Jul 18, 7:25 PM
    Can employer demand bonus be repaid? 11th Jul 18 at 7:25 PM
    Hi,
    My husband is having ongoing difficulties with his employer regarding holiday entitlement. He works away from home and his job entails working bank holidays when required. The company pays a £100 (gross) payment in addition to his usual pay when he works on a bank holiday. This is detailed in his contract in an Appendix titled ‘pay and remuneration’.

    When it came to booking his annual leave for this year, he was told he only had five days left to use after we took a three week holiday at the start of the year. My husband challenged this saying he should have 13 days left to use given that the statutory minimum is 28 days (also clearly stated in his employment contract). Despite clearing the three weeks’ holiday with his management over a year in advance, the response he had was ‘you’ve already had three weeks off, what more do you want?’. Anyhow, it transpired that the company had always paid the £100 for working a bank holiday but had never given the day off back in leiu, despite the law being to have 28 days and it clearly again stating in his contract that when bank holidays were worked they must legally give another holiday day back. Many employees, therefore, including my husband last year, had only taken 22 days’ holiday (the company are closed on Christmas Day and Boxing Day).

    Jumping forward, there has been some discussion in the office of the company offering employees the option of the bank holiday bonus OR a day back in lieu, which my husband has maintained is illegal as it’s below the statutory minimum. He has now found himself in the position that a letter has been issued to staff informing them that as they want the holiday, the £100 bonus is being removed and anyone who has been paid it this year for working on a bank holiday has to pay it back!! As my husband has worked all four bank holidays so far, they’re expecting £400 back. At the same time, possibly uncoincidentally, rumours are being circulated that they are letting go a member of staff at the end of the month, so most staff are worried about their job security. Other members of staff in the same position as my husband are now blaming him for rocking the boat by asking for his holiday.

    My question is where my husband stands legally in terms of having to repay this money? Their manager has said that the company owner has consulted ACAS who’ve said it’s fine for them to recover the money. I find this highly doubtful as a) they’ve always used a private solicitor for contract matters and b) because I can’t see how they can do this when it’s written in the contract, has always been done and they’ve been operating outside of the law regarding holiday entitlement. Could anyone advise please, and offer any suggestions of what we can do next? Unfortunately, quitting and taking them to a tribunal is not our desired goal! Many thanks
Page 1
    • steampowered
    • By steampowered 11th Jul 18, 7:52 PM
    • 2,864 Posts
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    steampowered
    • #2
    • 11th Jul 18, 7:52 PM
    • #2
    • 11th Jul 18, 7:52 PM
    The law is indeed 5.6 weeks' holiday (28 days for someone who works 5 days a week).

    But bank holidays (or days off in lieu) can be counted towards that entitlement. Bank holidays are not additional.

    So if your husband had all 8 bank holidays in 2018 off, or took a day-off in lieu, he would only have 20 days of his legal entitlement left.

    Unless your husband has signed something in writing or it is a term in his employment contract that he must repay the £400, I can't see any legal basis for the employer to get the £400 back. Of course that may not go down well when the employer looks at who they want to make redundant but that is up to them.

    Personally I would not repay the £400 and would insist on taking my legal entitlement of holiday - after making very sure I had got my calculation correct! But I suppose that is easy for me to say through a forum.
    • kitkatt1982
    • By kitkatt1982 11th Jul 18, 8:17 PM
    • 114 Posts
    • 49 Thanks
    kitkatt1982
    • #3
    • 11th Jul 18, 8:17 PM
    • #3
    • 11th Jul 18, 8:17 PM
    Thanks steampowered. The term used in his contract is 28 days inclusive of bank holidays and so equates in total to the legal minimum as you said. Plus that if an employee is required to work on a bank holiday the employer must by law provide a day in leui. He’s taken 15 days, and worked four bank holidays therefore should have 13 days left. They were originally stating he only had 7 days left as he was paid the £100 so wasn’t entitled to the day in leiu as well. After arguing this, they’ve said if he wants the days back he has to repay the £400 total. If his terms were 28 days leave PLUS bank holidays this would obviously be entirely acceptable, but the 28 days are inclusive of the bank holidays.
    • steampowered
    • By steampowered 11th Jul 18, 9:50 PM
    • 2,864 Posts
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    steampowered
    • #4
    • 11th Jul 18, 9:50 PM
    • #4
    • 11th Jul 18, 9:50 PM
    Yes - if your husband only taken 15 days leave (including any bank holidays where he didn't work), then he has 13 days left.

    It is indeed not lawful for an employer to pay people in lieu rather than giving them 28 days holiday. If an employer wants to pay people extra for working a bank holiday that's great, but it doesn't reduce the legal minimum holiday entitlement.
    • Brynsam
    • By Brynsam 12th Jul 18, 1:28 AM
    • 1,607 Posts
    • 1,164 Thanks
    Brynsam
    • #5
    • 12th Jul 18, 1:28 AM
    • #5
    • 12th Jul 18, 1:28 AM
    Hi,
    My question is where my husband stands legally in terms of having to repay this money? Their manager has said that the company owner has consulted ACAS who’ve said it’s fine for them to recover the money.
    Originally posted by kitkatt1982
    I rather doubt ACAS said any such thing, since this is a retrospective change which has not been agreed with the employees.

    Why don't you give ACAS's helpline a call and see what they say to you? Number is 0300 123 1100, 8.00 am to 6.00 pm Monday to Friday. Do update this thread, please!
    • sangie595
    • By sangie595 12th Jul 18, 9:37 AM
    • 5,310 Posts
    • 9,132 Thanks
    sangie595
    • #6
    • 12th Jul 18, 9:37 AM
    • #6
    • 12th Jul 18, 9:37 AM
    I rather doubt ACAS said any such thing, since this is a retrospective change which has not been agreed with the employees.

    Why don't you give ACAS's helpline a call and see what they say to you? Number is 0300 123 1100, 8.00 am to 6.00 pm Monday to Friday. Do update this thread, please!
    Originally posted by Brynsam
    Given the dodgy advice routinely handed out by ACAS nothing would surprise me.

    This looks to me like someone is using an old contract and hasn't updated it - not that many years ago you could have done this lawfully, as statutory leave was 20 days and anything over that would have been negotiable - and at that time £100 compensation would have probably been very generous!

    I'd have to agree with the advice so far, and I can't see that they have any legal authority to take the payments back. But as Steampowered says, I'm not depending upon this job, and so it's easy for me to say to fight back - right now he is in a vulnerable position with a potential redundancy and his colleagues blaming him for raising all this in the first place. That's the problem with workplaces - all too often colleagues won't back each other up and there's no solidarity. That makes it easier to pick off the minority who will complain.

    It is possible that if selected for dismissal, he might mount a claim of unfair dismissal on the grounds of asserting a statutory right. The problem is that these are the sorts of cases that are hard to evidence, and he's not been collecting evidence so far. So it might be a stretch - although I do think it I is likely going to be the case proving it is another thing.

    Another example of why having people in a union is a good idea. If the staff had been unionised, it would have been harder for the employer to pick off people. To say nothing of the fact that of you are going to stick your head over the parapet, having the title of shop steward is very useful, on account of the fact that sacking people for union activity is never a good idea and employers are much more careful of not getting caught looking like they are doing that!
    • getmore4less
    • By getmore4less 12th Jul 18, 12:34 PM
    • 33,076 Posts
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    getmore4less
    • #7
    • 12th Jul 18, 12:34 PM
    • #7
    • 12th Jul 18, 12:34 PM
    Given the dodgy advice routinely handed out by ACAS nothing would surprise me.

    This looks to me like someone is using an old contract and hasn't updated it - not that many years ago you could have done this lawfully, as statutory leave was 20 days and anything over that would have been negotiable - and at that time £100 compensation would have probably been very generous!
    .......
    Originally posted by sangie595
    Depends what you think is not that many years ago

    The rise to 4.8 weeks was in Oct 2007, over 10 years ago.
    The rise to 5.6 weeks was in April 2009, over 9 years ago.
    • sangie595
    • By sangie595 12th Jul 18, 12:59 PM
    • 5,310 Posts
    • 9,132 Thanks
    sangie595
    • #8
    • 12th Jul 18, 12:59 PM
    • #8
    • 12th Jul 18, 12:59 PM
    Depends what you think is not that many years ago

    The rise to 4.8 weeks was in Oct 2007, over 10 years ago.
    The rise to 5.6 weeks was in April 2009, over 9 years ago.
    Originally posted by getmore4less
    Yes but, ... It depends how long you've been doing stuff (40 years in my case) and also it's not quite that simple, is it? Because when statutory leave first started increasing, it was actually possible to only take 20 days and be paid for the remainder (which is what is being done here). Without checking I can't remember when that changed. But from my perspective it wasn't that long ago. And given how long it takes some employers to catch up..... I regularly see things in contracts that haven't been changed since they were drafted - recently, a fixed term contract that said redundancy pay wasn't payable, and that changed in the 80's!
    • kitkatt1982
    • By kitkatt1982 12th Jul 18, 8:32 PM
    • 114 Posts
    • 49 Thanks
    kitkatt1982
    • #9
    • 12th Jul 18, 8:32 PM
    • #9
    • 12th Jul 18, 8:32 PM
    Thanks for all your replies.

    I have today consulted ACAS who have confirmed that basically everything theyve done is illegal in breach of working time regulations.

    Since asking my initial question, my husband has sent me a copy of the letter theyve received stating that they had asked members of staff whether they would prefer to be paid for the bank holiday or have time off in lieu. As the vote was evenly split (my husband abstained), they consulted ACAS on how to proceed. ACAS have obviously advised them that the 28 days is the statutory minimum and so they have taken ACAS advice and will be removing the extra pay moving forward. Fair enough. They actually stated that ACAS have advised that this has become an obligation for us to implement - um yes, ten years ago!! However the wording which goes on about how disappointed some members of staff will be etc implies blame on the person who raised the issue in the first place (my husband) rather than taking any responsibility as a company.

    They have then decided to call this year a transitional year and have therefore given employees the choice; to either retain any bank holiday payments for bank holidays already worked (and lose their days in lieu thus taking them below the stat minimum) or return such payment so that the additional holiday can be paid. The lucky employee (excuse my sarcasm there) has until the 27/07 to return the form to express his preference and the company are very kindly offering to deduct it from their pay rather than a lump sum payment.

    Theyve also decided they can only have 27 days this year as Good Friday was on the 31st of March and apparently theyve already been compensated for this!!

    As expected, my conversion with ACAS confirmed that all of this is illegal. They are in breach of the working time regulations, health and safety and their own contracts, as well as holding a statutory right hostage for remuneration which equates to blackmail.

    As someone said, as my husband has only been there 18 months, he!!!8217;s not covered by full employment rights although would have grounds for unfair dismissal for exerting a statutory right.

    Hoping for a reasonable discussion, he contacted the office manager who said refused to discuss it, he!!!8217;s absolutely hacked off about the matter and won!!!8217;t be discussing it any further as now they!!!8217;ve got to employ extra workers to cover all this holiday before hanging up. Two other members of staff have had a go at him as they!!!8217;ve now lost their extra pay.

    Anyway, law aside which means nothing more than the paper it!!!8217;s written on it seems, we have no choice but to repay the money or forfit the holiday which we don!!!8217;t want to do as have booked some days away for our daughter!!!8217;s birthday (expensive few days hey!). They!!!8217;ve already forced a guy out who disputed something by basically keeping him away from home 7 days a week and we!!!8217;re worried that!!!8217;ll happen to my husband. Feel so bad to be backed into the corner in this way but we can!!!8217;t afford for him to lose his job !!!55357;!!!56875;
    Last edited by kitkatt1982; 12-07-2018 at 8:35 PM.
    • General Grant
    • By General Grant 13th Jul 18, 4:45 PM
    • 768 Posts
    • 857 Thanks
    General Grant
    . . .

    Theyve also decided they can only have 27 days this year as Good Friday was on the 31st of March and apparently theyve already been compensated for this!!

    . . .
    Originally posted by kitkatt1982
    Does the Holiday Year run from 1 April to 31 March?

    When they talk about a "year", what are they talking about - calendar year??
    • getmore4less
    • By getmore4less 13th Jul 18, 5:36 PM
    • 33,076 Posts
    • 19,949 Thanks
    getmore4less
    Yes but, ... It depends how long you've been doing stuff (40 years in my case) and also it's not quite that simple, is it? Because when statutory leave first started increasing, it was actually possible to only take 20 days and be paid for the remainder (which is what is being done here). Without checking I can't remember when that changed. But from my perspective it wasn't that long ago. And given how long it takes some employers to catch up..... I regularly see things in contracts that haven't been changed since they were drafted - recently, a fixed term contract that said redundancy pay wasn't payable, and that changed in the 80's!
    Originally posted by sangie595
    Can't be paid(except on termination) was in the same act and kicked in for any leave accruing from April 2009.

    Given that universal statutory holidays did not kick before 1998 going back 40 years is pointless.
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