Notice and Holiday Pay

AidySevenfold

Hi everyone,

just handed in my notice officially today after telling them on friday I was leaving. Officially 2 weeks notice I have given and i'm paid every 2 weeks.

Basically, got a new job and informed them i'm leaving and at the end made a note about accrued vacation.

After i sent the email my boss came over and said I probably won't get my holiday pay.

I've 3.75 days annual leave from last year, as well as 2.75 built up this year and they said i'm not getting it because I am permanent? I wasnt even offered to take the last few days off as leave either.

This is my first proper job and feel as if i'm being screwed out of my holiday pay that i'm owed?

I checked citizens advice and they say this on their site.

''However any employee leaving a job is entitled to payment for any outstanding annual leave.''

anyone able to help?

thanks

Nody

They are trying to pull a quick one; you have the right to be paid for accrued leave.

Stheno

Nody wrote: »

They are trying to pull a quick one; you have the right to be paid for accrued leave.

Depending on the policy, leave from last year may not carry over, but OP is entitled to accrued leave from this year.

OP how many days leave were you allowed on a yearly basis?

AidySevenfold

21 days Annual leave with 9 company holidays in lieu.

Any American bank holiday we worked we got in lieu as a day we wanted off then.

Days from last year have to be used before the end of March if that gives any extra scope

Eoin

Unless they give you the time off as part of your notice period (which is their decision), then yeah, you're due the holiday payment based on what you've accrued.

Senna

AidySevenfold wrote: »

21 days Annual leave with 9 company holidays in lieu.

Any American bank holiday we worked we got in lieu as a day we wanted off then.

Days from last year have to be used before the end of March if that gives any extra scope

I'd be taking the last week of your notice off as holidays and I would put it in writing to HR and the manager tomorrow, stating that the manager said you would not get holiday pay after your notice period.

Steve

Stheno wrote: »

Depending on the policy, leave from last year may not carry over

Depends not so much on policy but on precedent. If it was understood that days carried and has been the norm for other employees then it'll stick (if it went to EAT).

Senna

Steve wrote: »

Depends not so much on policy but on precedent. If it was understood that days carried and has been the norm for other employees then it'll stick (if it went to EAT).

Employers cannot refuse to carry over holidays, it is employers duty to ensure employees take holidays, it is not the responsibility of the employee. Employers should ensure that the carried over holidays are used within the first 6 months of the following year.
This is EU law and cannot be circumvented by anything in your contract.

Stheno

Senna wrote: »

Employers cannot refuse to carry over holidays, it is employers duty to ensure employees take holidays, it is not the responsibility of the employee. Employers should ensure that the carried over holidays are used within the first 6 months of the following year.
This is EU law and cannot be circumvented by anything in your contract.

link?

Senna

http://employmentrightsireland.com/how-to-calculate-holiday-entitlements/

Quote
The employer can decide when annual leave can be taken, subject to certain requirements such as the requirements of the business and the requirements of the employee in respect of work/life/family balance.

By the same token it is the employer’s responsibility to see that the employee takes his/her full entitlement within the leave period.

Leave must be given and taken within the leave year, unless the employee consents to getting leave in the first six months of the following leave year.

End quote

Thats just the first link I found, you can search yourself if you want wordings.
It's actually part of Organisation of Working Time Act, 1997 now, but there is/was an EU that brought about this law. Didn't think it was as old as 1997 though.

Steve

Senna, you are contradicting yourself there.

The employee has to consent to an offer from the employer under OWT.

EU law means nothing unless it is enacted in this country by SI or other means.

There is no legal obligation to 'carry over' leave. There are other obligations on an employer to either ensure an employee takes the leave or compensates them for not taking it. As above, there is also consensual carry over. Point is, all employees must be treated equally and if the majority were allowed carry days then they cannot deny it to a minority.

Senna

Steve wrote: »

Senna, you are contradicting yourself there.

The employee has to consent to an offer from the employer under OWT.

EU law means nothing unless it is enacted in this country by SI or other means.

There is no legal obligation to 'carry over' leave. There are other obligations on an employer to either ensure an employee takes the leave or compensates them for not taking it. As above, there is also consensual carry over. Point is, all employees must be treated equally and if the majority were allowed carry days then they cannot deny it to a minority.

I'm no expect but the wording was explained to me by what could only be described as a specialist (on behalf of an employers union) stated that the employee concent meant that leave has to be given within the leave year unless the employee consents to carrying it over, which they have/will rather than lose it.

I was acting on behalf of the employer and I was told either allow them to carry the holidays over as it was my responsibility to make sure they took their holidays, which I had obviously not. Payment instead was mentioned but I didn't pursue that.

I don't really understand your point. Are you saying in the OPs case he did not concent to the holidays being carried over so he has lost them?

Steve

Senna wrote: »

I don't really understand your point. Are you saying in the OPs case he did not concent to the holidays being carried over so he has lost them?

My point is - if other employees (precedent) had unused leave from a previous year and it was recognised by the employer and they were allowed use it in the current year then it should be classed as 'owed' leave in the OP's case.

If the company had a record of compensating for unused leave (grey area) or for cancelling unused leave (illegal) then it's different and doesn't necessarily mean the employee is entitled to it. It does leave the employer liable to conviction under OWT and the employee could seek compensation from them from the EAT - which can award up to max 2 years salary (but in reality they will award what is owed) .

Senna

Steve wrote: »

My point is - if other employees (precedent) had unused leave from a previous year and it was recognised by the employer and they were allowed use it in the current year then it should be classed as 'owed' leave in the OP's case.

If the company had a record of compensating for unused leave (grey area) or for cancelling unused leave (illegal) then it's different and doesn't necessarily mean the employee is entitled to it. It does leave the employer liable to conviction under OWT and the employee could seek compensation from them from the EAT - which can award up to max 2 years salary (but in reality they will award what is owed) .

Right, so say the OPs company has no precedent (can you link to the law that uses precedent for annual leave??) , can they refuse him the holidays?
I don't think they can, I'm really unsure what you are trying to say, so maybe answering an example would help.

AidySevenfold

No mention of a notice period on my contract unless on probation - which I am not.

Regarding time carried over, we can carry it over and use it within the first 6 months of the next year, not 3 as I had originally posted. That is in my contract

Steve

AidySevenfold wrote: »

No mention of a notice period on my contract unless on probation - which I am not.

Regarding time carried over, we can carry it over and use it within the first 6 months of the next year, not 3 as I had originally posted. That is in my contract

If that is the case, you are entitled to be either be paid for the 3.75 days carried as well as accrued leave in the current year or to take the days off before you leave (and be paid for them).

Steve

Senna wrote: »

Right, so say the OPs company has no precedent (can you link to the law that uses precedent for annual leave??) , can they refuse him the holidays?
I don't think they can, I'm really unsure what you are trying to say, so maybe answering an example would help.

There is no such concept of 'no precedent'. Either they allowed carry-over in the past or they didn't. History defines precedent.
I can't link to a written instrument - there is none - there is only case law and previous decisions by the judiciary in how they interpreted employment law which are sparsely documented in this country. The only one that could expand on that and maybe quote some sources is a qualified solicitor with experience in this field.

Senna

Edited, had a post written before I seen your.

Steve wrote: »

There is no such concept of 'no precedent'. Either they allowed carry-over in the past or they didn't. History defines precedent.

Situation hadn't occurred before, that's why I looked for help when this situation arose.
I find it hard to believe that precedent overrides law. The law I quoted above is fairly clear, if you state that I am misinterpreted it, so be it.

Steve

Senna wrote: »

I'd really like clarification if possible. Say no contract is in place, say no precedent is in place. An employee has 5 days annual leave from 2015 un-taken and wants to take them in March 2016. Can an employer say no or not compensate them?

Of course they can say no. Just like you could walk out of a shop without paying for something - or break the speed limit for a few seconds driving home. Doesn't mean it's legal. Many get away with it though.

That's what EAT was set up for.

Senna

Sorry I'm slow to reply here. When I say "can they say no" , I obviously mean legally, I though we were talking about laws.

Steve

Senna wrote: »

Sorry I'm slow to reply here. When I say "can they say no" , I obviously mean legally, I though we were talking about laws.

You are correct. It's technically not legal for them to say that.

I'm not a legal professional btw, I just like to know these things and research it as much as i can.

In practice though, many laws are broken with no consequence and employers have come to either count on that or plead ignorance and get away with it. You read about the odd one or two in the news that get prosecuted or awarded compensation against but these are in the minority.

Senna

Steve wrote: »

You are correct. It's technically not legal for them to say that.

I'm not a legal professional btw, I just like to know these things and research it as much as i can.

In practice though, many laws are broken with no consequence and employers have come to either count on that or plead ignorance and get away with it. You read about the odd one or two in the news that get prosecuted or awarded compensation against but these are in the minority.

I appreciate you are not an expect, certainly I am not either, but considering this is a work related forum and considering I posted laws, was there really a need for you to post rebuttals that's were stating how employers get around the law through ignorance( to the detriment of employees), which you posted in a very mater of fact manner.
Would the law and acknowledgement of the laws not be more helpful for anyone reading threads like this in the future?

Steve

Senna wrote: »

I appreciate you are not an expect, certainly I am not either, but considering this is a work related forum and considering I posted laws, was there really a need for you to post rebuttals that's were stating how employers get around the law through ignorance( to the detriment of employees), which you posted in a very mater of fact manner.
Would the law and acknowledgement of the laws not be more helpful for anyone reading threads like this in the future?

Apologies, I'm not being confrontational on purpose, just relaying my experience and knowledge as I've been on the wrong side of this as an employee in the past.
I also know I don't post in this forum much so my credibility is low.

However, I'm also a realist, yes we can all post what the law says should happen but in reality, unless someone is prepared to take it all the way to court, then they will get fu*ked over. The law in this country doesn't favour the honest hard working individual at all. If you have robbed cars, broken into houses, come from a broken home and have 100 previous drugs offences then you are fine however.

That said, and back to the topic, the OP should go back to their employer armed with what has been said in this thread - a lot of good info there - and in a formal setting put all the points across wrt their contract and time carried over - and IMPORTANTLY visibly make notes of everything they say and make sure they see it. They can't legally record the meeting but there is nothing to say they can't transcribe on paper what was said later (maybe using a phone in the shirt pocket that recorded everything... hint hint..)

Mrs OBumble

Hang on. What does the hr policy manual say about notice?

Two weeks seems very short notice for a proper job, irrespective of your pay frequency.

Steve

Mrs OBumble wrote: »

Hang on. What does the hr policy manual say about notice?

Two weeks seems very short notice for a proper job, irrespective of your pay frequency.

HR policy is irrelevant when an employee is leaving, what is in their contract of employment is.

There is no legal obligation for an employee to give any notice, they can simply not turn up the next day.

It there is a clause in the contract of employment with a minimum notice period then the employer would need to sue under breach of contract and prove they suffered a material loss.

Eoin

Steve wrote: »

There is no legal obligation for an employee to give any notice, they can simply not turn up the next day.

It there is a clause in the contract of employment with a minimum notice period then the employer would need to sue under breach of contract and prove they suffered a material loss.

How do you figure that? If you sign a legally binding contract with a notice period that does not contradict any statutory laws, how is that not a legal obligation? Whether or not a company is likely to pursue it in court is a different matter.

Steve

Eoin wrote: »

How do you figure that? If you sign a legally binding contract with a notice period that does not contradict any statutory laws, how is that not a legal obligation? Whether or not a company is likely to pursue it in court is a different matter.

What I meant was, there is no legislation governing minimum terms of notice to be given by an employee - as opposed to there *is* legislation covering minimum notice given by an employer.

Yes, you are correct, contract law would apply but, in reality, pursuing it would cost an employer more than they could recover (in most circumstances) so there is no point. All an employee in this case needs to do is mention 'stress' and it all goes away.

AidySevenfold

Back to work tomorrow, gonna see what the story is. I'm hoping all he/she meant was that I won't get to take my days off, in other words - I work my notice but still get paid for after for my remaining holidays.

Thanks everyone for the replies

AidySevenfold

Back to work tomorrow, gonna see what the story is. I'm hoping all he/she meant was that I won't get to take my days off, in other words - I work my notice but still get paid for after for my remaining holidays.

Thanks everyone for the replies

Steve

Best of luck!

AidySevenfold

Spoke with boss on Friday.

I'm getting my holiday pay - she communicated her point terribly
Thanks for advice everyone