Being paid for prior years annual leave when leaving a job

actuar90

As the title says, I'm leaving my current role, which I've been in for more than 3 years.

There have been huge resourcing issues in the our team and nobody available to cover for me if I was out on annual leave for any significant length of time.

Going in to 2021 I was carrying forward 30 days of annual leave that I had accrued in previous years. My managers had ok'd this and 1 had to do the same themselves.

At the start of my notice period I had the conversation with my manager about whether they would pay out for these holidays accrued or whether I should take them during the notice period. They agreed that there was no real choice but to get them paid out to me at the end.

2 weeks before my leaving date, after a 3 month notice period. HR have come in and said that what was done was against the HR policy of carrying forward a max of 5 days of annual leave from prior years so I will not be paid for any of this leave. They are not willing to budge on this at all.

Anyone have any similar issues or what to do in such a scenario? It seems absurd to me that this could happen given my managers were always aware of the situation

cml387

Oh dear. Sounds like sharp practice by HR

Have you anything to prove that you still had these days in your holiday bank prior to you handing in your notice?

Markus Antonius

Annual leave days are your entitlement, shouldn't matter what HR policy is.

If you can only carry 5 days then your manager should have made you take the days before year-end or reimbursed.

Having said that, not sure what the best way of tackling this, if HR are being the problem.

cml387

If you don't take your full leave entitlement in the year then the balance does not legally have to be carried forward.

However it's down to the company to communicate clearly if this is happening.

cml387

By the way you can no longer be reimbursed for holidays not taken, it's against EU working time legislation.

witchgirl26

Do you have anything in writing to show that managers had approved your carry over of the 30 days? Otherwise you may struggle with arguing with HR over it all. While you are entitled to your annual leave, there is no requirement in law to allow you to carry any over to the following year.

https://www.boards.ie/discussion/comment/118090283#Comment_118090283

That's not true in this case. A company can reimburse you for annual leave not taken when you are leaving. It is usually paid at the rate it was accrued during.

Raytown Rocks

https://www.boards.ie/discussion/2058215468/being-paid-for-prior-years-annual-leave-when-leaving-a-job

Make today your last day.

actuar90

https://www.boards.ie/discussion/comment/118090191#Comment_118090191

Thankfully I've tracked my holidays in a spreadsheet and have them in my work calendar because they get deleted from the HR system after 1 year even though there is a legal requirement for them to keep these records for 3 years

actuar90

https://www.boards.ie/discussion/comment/118090342#Comment_118090342

Yes, I have in writing that my managers were aware of this and they are completely on my side in this case

actuar90

https://www.boards.ie/discussion/comment/118090343#Comment_118090343

Yep, unfortunately the days I would recoup that way don't come close to what I'm owed and if I go down the legal route then I expect leaving now would go against me

mrslancaster

https://www.boards.ie/discussion/comment/118091027#Comment_118091027

The annual leave that must be taken during the leave year or any that's carried over to the first six months of the following leave year (with the employee's consent) refers to statutory leave entitlement and these should be taken for H&S. Some companies grant more than the 4 weeks statutory leave and afaik there can be different rules about any contractual AL in excess of the statutory.

How is the 30 days outstanding made up? Is it all part of the 4 weeks statutory?

Also did you take the carried forward days during the first six months of the following leave year, eg 2018 days carried into 2019 taken first before using your 2019 days and so on for the following years?

dennyk

There have been huge resourcing issues in the our team and nobody available to cover for me if I was out on annual leave for any significant length of time.

Just for future reference, unless you are the business owner, it's not your problem if there's no one to cover for you when you take annual leave; that's your employer's problem to solve. Don't make it yours; always take all of the leave you're entitled to in the future, and if your employer hasn't staffed their business properly and things don't get done, well, so be it. Obviously you should be reasonable and work with your manager on the best times to take that leave, but "Never, because we're just so understaffed, you see..." isn't an acceptable answer.

Strumms

https://www.boards.ie/discussion/comment/118091027#Comment_118091027

With everything being documented I’d get it backed up and printed off before you go sick, do go sick and take everything to a solicitor...

attempt to keep all interactions with them in writing... no calls, words get lost in the wind, in email however...

kennethsmyth

https://www.boards.ie/discussion/2058215468/being-paid-for-prior-years-annual-leave-when-leaving-a-job

This is illegal once all those holidays due are considered statutory ones. Tell them you'll see them in the WRC, note all names are now released to public in WRC both company and person. This non payment would look extremely bad on any employer and not an issue for the employee going forward.

Risteard81

https://www.boards.ie/discussion/comment/118090191#Comment_118090191

Sue them.

daheff

As far as I'm aware you cannot waive a statutory entitlement - which is effectively what they are looking for you to do here.

Reiterate that you carried the time with the blessing of your manager and that nobody was looking to enforce HR policy of taking days in the year of the accrual, so sharp practice to try enforcing it after the fact and only advising you of this decision when you have a short period of time left with the company.

mrslancaster

OP there are rules about payment for unused AL on leaving your job. Does your contract or employee handbook say anything? How are the 30 days made up - is it 20 this year & 10 carried?

HildaOgdenx

https://www.boards.ie/discussion/comment/118091989#Comment_118091989

This, in spades. Don't ever think that you are indispensable, and in future, make it your employer's issue to cover A/L. Hope you get sorted.

rock22

It is unclear whether you were asked by your employer to forgo annual leave in previous years with a promise that the leave days could be taken at a later date.

It is also unclear the status of your manager. In particular it is not clear your manager would have any role in agreeing HR policies.

In your different posts you stated

My managers had ok'd this 

my manager ..... agreed that there was no real choice but to get them paid out to me at the end

my managers were aware of this 

These all suggest that you decided not to take the leave and your manager knew about that,. it does not mean that your employer made an agreement to suspend the HR policy . The time to sort this with HR was when you decided, pr were asked to suspend taking annual leave.

I think to succeed in any claim, to would need to have, in writing, a request from your employer that you would forego annual leave and they would agree to your taking these days in the following years.

manonboard

You told your manager about the situation and they told you it was fine, you'd get paid. This is a company representative telling you this. Thats what the chain of command is for.

I think you have two options.

Tell HR that after making your manager aware of the situation, you agreed to work to help the company rather than taking the time off as it was required for the transition to happen effectively. They either have to pay you for the time you have given up on your holidays, or you will bring a case about it after your departure.

Your second option you must do immediately anyways because NOW you have have been told other wise by the company. DO NOT work anymore. You should immediately stop working as you have been told by the company you are not getting paid for the work. From now, until the end, you must use as much holidays as possible so that when you bring your case, you show that as soon as the company changed their line. You complied. Dont work and try to make a point out of it, that will just fall back on your case in a negative way.

granturismo

https://www.boards.ie/discussion/comment/118100475#Comment_118100475

I agree with your sentiments but unfortunately, the employer has to agree to any annual leave.

_Brian

https://www.boards.ie/discussion/comment/118090271#Comment_118090271

This isn’t correct. by law you have an additional 26 weeks to take statutory leave, after that it is lost.

companies cannot wipe out untaken leave at the end of a year. Additional leave above statutory yes, they can wipe out, but your statutory allowance has an additional 26 weeks to be taken.

so depending on the dates OP handed in notice compared to their annual leave yea, if it’s after the 26 weeks then leave from the previous year is lost.

FishOnABike

https://www.boards.ie/discussion/comment/118100503#Comment_118100503

I would put in the request for the maximum annual leave you can immediately. At least if it came to going legal you would be able to show you had tried to mitigate your loss.

If your manager has approved the carryover up to now it might be worth pointing to HR that continuing to work could be against minimum wages legislation as you are essentially being asked to work for free.

With a bit of ingenuity and will it might be possible to figure out a workable solution. Could you take as much paid holidays as you can immediately. This could leave the company with a resourcing problem that would be difficult to backfill at short notice. However someone with the exact skillset who would need no training has just become available.

Could the company take you on at contractor rates to bridge both their resourcing gap and your accrued holidaypay gap?

Ray Palmer

if they didn't give you the required 2 weeks uninterrupted days off they broke the working time directive. To argue that you can't carry over the days with agreement when they were meant to insure you took your days off as required. HR have this wrong and are opening themselves up to fines. I would tell them you are going to the labour court because they are in trouble for violating your rights regardless of their policy. Most likely your manager never informed them but they also didn't make sure their legal requirements were met.

BronsonTB

https://www.boards.ie/discussion/comment/118100543#Comment_118100543

My company have a policy of not allowing any more than 5 AL days to be carried forward into a new Year - Are they allowed do this then? Does company policy overwrite the statutory allowance?

dennyk

https://www.boards.ie/discussion/comment/118100639#Comment_118100639

No, company policy doesn't override the law. The law doesn't strictly entitle you to "carry over" annual leave from year to year, however; it entitles you to take 20 days (four working weeks) of annual leave in a leave year (if you are employed full time, or whatever your calculated allotment is if you are part-time), and states that with your consent (as the employee), any or all of those statutory leave days can be taken within six months after the end of the relevant leave year instead of during that year.

An employment contract cannot provide you with less favourable terms than that. However, the law allows your employer to determine when you take your leave, provided they take your needs into account and give you sufficient notice, so your employer could simply require you to take enough annual leave within the current leave year such that you would have no more than five days of annual leave remaining by the end of the year. What they can't do is refuse to allow you to take your statutory leave during the relevant year and also refuse to allow you to take it during the subsequent six months after the end of the relevant leave year; that would effectively mean they are not giving you your annual leave entitlement and are in violation of the law.

The other wrinkle is that those rules apply only to the statutory annual leave; if your employer provides more leave time than the minimum required, the rules around the usage of that additional time can be freely determined by the employer and defined accordingly in your contract. If your employer gives you 30 days, for instance, and you use 20 in the current leave year, they could argue that those 20 days you used were the entirety of your statutory leave and prohibit any further carrying forward of your remaining additional days of leave beyond the end of the leave year, if your contract permits them to do so.

Really, the best thing to do is to make sure you always use all of your annual leave entitlement in the year in which the leave relates to; that way there's no need to worry about the additional complexity of "carrying over" leave. Even if you don't want to travel due to Covid or finances or whatever, just take some days or weeks off here and there regardless.

Sottol

https://www.boards.ie/discussion/comment/118101468#Comment_118101468

this is is helpful to know! Where you have 6 months of the following year to use your allowance im wondering where in the legislation this is laid out so I can refer to it when I reach out to our HR department

bucketybuck

https://www.boards.ie/discussion/comment/118100543#Comment_118100543

Can you quote from the law where it says an employee has an extra 26 weeks beyond the leave year in which they can take unused leave?

This doesn't match what I have experience with and would like to know more.

bucketybuck

https://www.boards.ie/discussion/comment/118101468#Comment_118101468

If I read this correctly then the extra 26 weeks discussed only applies where the company explicitly prevented the employee from taking the leave within the leave year, correct?

Thats rather different from saying a company cannot wipe unused leave at the year end or that any employee can have an extra 26 weeks to take leave. They need to prove that they were denied the leave at all points, not simply that they didn't use it.

For the OP then it is going to be a very important question. Not what actually happened, but what he can prove. Was he explicitly denied the leave, or did he just not take it based on his own decisions?

dennyk

https://www.boards.ie/discussion/comment/118108884#Comment_118108884

It's right here in Section 20:

+++

20.—  (1)  The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

...

(c) to the leave being granted —

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or

(iii) where the employee —

(I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer, within the period of 15 months after the end of that leave year.

+++

https://www.boards.ie/discussion/comment/118108932#Comment_118108932

The law as written doesn't specifically address that, actually; it simply defines how much statutory annual leave employees are entitled to each year, and states that the employer determines the times when the leave shall be granted (subject to their taking into account the employee's needs and providing at least one month's advance notice of when they are to take their leave), and that the leave in question must be granted within the relevant leave year or, with the consent of the employee, within six months after the end of the relevant leave year (in other words, the employer can't unilaterally decide that an employee will be granted this year's leave during the first six months of next year instead; they must obtain the employee's consent to allow that leave to be granted during that time instead of during the current leave year).

Ultimately it is the employer's responsibility to ensure that they follow the law and grant their employees all of the leave they are entitled to. There is no provision in the law which would allow an employer to fail to grant an employee all of the leave to which they are entitled. Employees are not required to specifically request leave and they don't forfeit their legal entitlement to leave if they fail to do so. If an employer fails to grant an employee the leave they are entitled to during a leave year because the employee didn't ask for any time off, the employer has violated the law. Systems where employees are responsible for scheduling their own leave and submitting leave requests are simply a convenient method for employers to manage leave, but it's still the employer's responsibility to ensure that their employees are actually being granted their leave entitlement in full, and that might mean that they would have to schedule time off for an employee themselves if that employee is failing or refusing to book their own leave for some reason despite active encouragement from their employer. The employer saying "Oh, you didn't book any leave, so you have forfeited your leave entitlement for this year..." isn't actually permitted under the law.

Do note that all of this relates to the minimum statutory leave entitlement, however (e.g. four weeks a year for full-time employees). Leave offered voluntarily by an employer in excess of the statutory requirement doesn't have the same limitations and would be subject to whatever policies are set out in the employee's contract, so such excess leave could be forfeited at the end of the year if an employee doesn't explicitly book it off, if that is what the contract states.

bucketybuck

https://www.boards.ie/discussion/comment/118111964#Comment_118111964

Again though, that is dealing with a specific situation, rather than the blanket statement that an employee has another 6 months to take their leave, or that an employer cannot wipe leave at the year end.

If the employer does not allow them to take leave at any point in the leave year then those statements would apply. I just don't see how it applies to a case where an employee could have taken leave but didn't.