Owing employer holiday pay

rockdj316

Hi Folks,

Tomorrows my last day in my current job.

They say I owe 8 days annual leave, I say I owe 5 as they put down 3 days sick that I had in January as annual leave without my consent.

If push comes to shove a) should I have to pay the extra 3 days ,cash (if push comes to shove) as I've only worked 5 days so far this month to cover the first 5 days anyway and b) should I have to pay the 3 days anyway? C) If I can't come up with the extra 3 days pay and I do have to pay it, can I pay in instalments as I really can't afford it.

s7ryf3925pivug

Well they’re not obliged to pay you for sick days, so it’s probably irrelevant that they took them out of your holiday allowance. Bit weird that they’re looking for it to be repaid, would have thought it would come out of your wages. Sounds dodgy tbh. I’d be uncomfortable giving cash payments back as surely it would not be properly tracked by revenue for either party. Would it be possible to do a day’s work on three saturdays or something?

Time

Lucian Howling Teardrop wrote: »

Well they’re not obliged to pay you for sick days, so it’s probably irrelevant that they took them out of your holiday allowance. Bit weird that they’re looking for it to be repaid, would have thought it would come out of your wages. If you can’t afford it then tell them that, and repay them when you can. Not much else you can do.

If you’re sick during annual leave and it’s ceritified, then you are entitled to take those days of annual leave at a later date. Naturally it follows that employers making people take annual leave when ceritified Ill is not legal.

s7ryf3925pivug

I know one company that offers flexi days - you get five days you can use for sick leave or as extra holidays. After that you don’t get paid for sick leave... Guess that’s why they call them flexi days and not extra holidays.

Mrs OBumble

Time wrote: »

If you’re sick during annual leave and it’s ceritified, then you are entitled to take those days of annual leave at a later date. Naturally it follows that employers making people take annual leave when ceritified Ill is not legal.

That's true .. but the days you were off sick then become unpaid days, for the vast majority of workers who don't get paid sick leave.

If you've already been paid for then, then they will be deducted from your final pay, no matter what category they're in.

beauf

Lucian Howling Teardrop wrote: »

I know one company that offers flexi days - you get five days you can use for sick leave or as extra holidays. After that you don’t get paid for sick leave... Guess that’s why they call them flexi days and not extra holidays.

Thats not sick leave thats just holidays.

I think they are calling to flexi days to confuse it with flexi time.

rockdj316

Lucian Howling Teardrop wrote: »

Well they’re not obliged to pay you for sick days, so it’s probably irrelevant that they took them out of your holiday allowance. Bit weird that they’re looking for it to be repaid, would have thought it would come out of your wages. Sounds dodgy tbh. I’d be uncomfortable giving cash payments back as surely it would not be properly tracked by revenue for either party. Would it be possible to do a day’s work on three saturdays or something?

I've asked and just got told no. When I asked why I just got told "because you can't ". You've no idea what I'm dealing with here.

s7ryf3925pivug

rockdj316 wrote: »

I've asked and just got told no. When I asked why I just got told "because you can't ". You've no idea what I'm dealing with here.

Think it’s coming across tbh

Time

rockdj316 wrote: »

I've asked and just got told no. When I asked why I just got told "because you can't ". You've no idea what I'm dealing with here.

If it were me i'd tell them that they can agree to the 5 days on the basis they can't legally require you to use annual leave for sick pay and if they aren't happy you'll go down the WRC route and let them adjudicate .

ichabod

How many leave days have you taken this year ? You are now into July so your legal holiday entitlement to date is 10 days. Even if the sick time is treated as holidays ( illegal ), the company owes you 2 days cash for the two days unused holidays.
You need to be much clearer on how many days' leave you have actually taken since January.
Regarding the 3 sick days being recorded as annual leave, that was an illegal decision made by management and they can whistle for it even though you have been paid. So, I personally would be looking for 5 days annual leave to be included in my final pay packet.
I am making the assumption that you only took 5 days annual leave to date plus the 3 days sick.

seagull

Did you provide a doctor's cert for the sick leave?

GM228

ichabod wrote: »

How many leave days have you taken this year ? You are now into July so your legal holiday entitlement to date is 10 days.

The leave year starts in April, not January. Whilst many employers operate the leave year on a calendar basis it is not in line with legislation and can cauae issues when for example there is a termination of employment.

Also holiday entitlements would be based on actual hours worked, not how many months have passed.

ichabod

GM228 wrote: »

The leave year starts in April, not January. Whilst many employers operate the leave year on a calendar basis it is not in line with legislation and can cauae issues when for example there is a termination of employment.

Also holiday entitlements would be based on actual hours worked, not how many months have passed.

You are correct but any employer I have worked for, and there have been a few, large and small, operated leave entitlements with the calender year. So it is reasonable to assume that the OP is in that position unless otherwise stated.
On your second point, you are again correct in that to qualify for leave, you must have worked a minimum number of hours. There are three ways to calculate these hours worked and the first one can really be discounted as it simply not practical.
Calculating annual leave
Under Section 19 (1) of the Act you are entitled to a basic annual paid leave entitlement of 4 weeks. There are 3 different ways of calculating your annual leave entitlement:

Based on the employee's working hours during what is called the leave year, which runs from April to March. An employee who has worked at least 1,365 hours in a leave year is entitled to the maximum of 4 working weeks' paid annual leave unless it is a leave year in which they change employment. Many employers use the calendar year (January-December) instead of the official leave year to calculate entitlement
By allowing 1/3 of a working week for each calendar month in which the employee has worked at least 117 hours
8% of the hours worked in the leave year, subject to a maximum of 4 working weeks
An employee may use whichever of these methods gives the greater entitlement. When calculating the entitlement, employers should include all hours worked including time spent on annual leave, maternity leave, parental leave, force majeure leave, adoptive leave or the first 13 weeks of carer’s leave.

An employee who has worked for at least 8 months is entitled to an unbroken period of 2 weeks' annual leave.

Part-time work: Generally, the annual leave for part-time workers is calculated using the 3rd method, that is, 8% of hours worked. If you work full time for some months and the rest of the year you work part time, you should calculate the leave for the full-time and the part-time periods of work separately.

Of course, this is all irrelevant as the OP has not outlined his conditions i.e leave period, part-time, full time, working hours, etc., so we are really only shooting the breeze here and working on assumptions, which may be totally incorrect. Maybe the OP might like to fill us in some of the finer details.

On the topic of the official year, why is it still April/March ? The tax year changed many years ago to the calendar year. It would make sense to bring the leave year into line with that, wouldn't it ?

GM228

ichabod wrote: »

You are correct but any employer I have worked for, and there have been a few, large and small, operated leave entitlements with the calender year. So it is reasonable to assume that the OP is in that position unless otherwise stated.

And this is the problem. Legally when paying leave entitlements on leaving a job an employer only has to apply April as the start of the leave year even if they operate on the calendar basis, this is because April-March is the statutory leave year, a calendar leave year is a highly adopted leave year which is strictly unlawful.

This matter has been raised previously in the old EAT and has also been the subject to at least one High Court case, one which I simply can't remember, but it was a topic I covered when I started in the industrial relations mechanisms 15 odd years ago.

ichabod wrote: »

On the topic of the official year, why is it still April/March ? The tax year changed many years ago to the calendar year. It would make sense to bring the leave year into line with that, wouldn't it ?

Not sure, if I remember correctly the current leave year was introduced around 1973, but the original April-March year for accounting purposes was down to differences between the Julian and Gregorian calendar.