Employer refusing to pay holiday pay after resignation

TheChizler · 13-10-2021 10:41am #1

My fianceé has been working in an admin role in a university for the last seven years, probably on 9 or 10 rolling "temporary" contracts during this time. She's after accepting another job in a different organisation and given her notice for next month.

HR are now saying she has to take the remainder of her accrued leave before the resignation date since it can't be paid after and she'll lose it. This sounds like absolute BS to me, holiday pay is a legal entitlement and the Working Time Act explicitly allows this. What I want to know is does anyone know if there are different rules for the public sector? One of these mass agreements like Croke Park or Haddington Road or something that might have removed this entitlement for someone working in a university?

What she'll probably end up doing is changing the resignation date to the last working day and adding the final holiday accruement to this to get the new resignation date but I'd like to know what the story is.

HR are either very sly or incompetent, there have been multiple issues in the past where they've tried to weasle their way out of accepting employee rights. For one making new young employees start on "student help" contracts even though they haven't been students for a number or years (their own public policies say this isn't allowed), justifying end dates in contracts by saying they were specific purpose contracts and tied to the duration of a project (when no such project existed and the work is standard ongoing admin work) or the refusal to give her a Contract of Indefinite Duration after the maximum number of, and years on, temporary contracts as set out in law, claiming the first few years of student help contracts didn't count towards a CID (nothing I can find supporting this in law). All dodgy positions if it ever came to a WRC case but she's just glad to be out of there and straight in to a permanent role.

13-10-2021 1:40pm

What is your issue with this? Your partner is getting the paid annual leave she is legally entitled to before her employment ends. If they have already accepted her letter of resignation, there is no onus on the employer to allow a change to the end date.

AnRothar · 13-10-2021 2:40pm

While on holiday and will accrue holidays.

So they want her to use her outstanding holidays before the date her resignation takes effect.

mrslancaster · 13-10-2021 5:01pm

The company need to agree when the leave will be taken 30 days beforehand so it depends on when your GF's notice is due to finish and if the company have enough time for that. Your GF's annual leave entitlement depends on her contract and if she is unable to take any or all of the accrued leave due, she should be paid for it up to her last day. The CS regulations includes public servants under the Minimum Notice & Terms of Employment Act and the Unfair Dismissals Act.

Afaik the grounds for a FTW contract are a specific task, date or event and the aggregate of two or more continuous contracts can't be more than 4 years. It doesn't apply to apprentices, defence forces or trainee garda and nurses. The Protection of Employees, Fixed Term Work Act 2003 has this:

Successive fixed term contracts. 9.—

(1) Subject to subsection (4), where on or after the passing of this Act a fixedterm employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.

(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.

(3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.

(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.

Is there a union rep your GF can chat to?

TheChizler · 13-10-2021 8:34pm

https://www.boards.ie/discussion/comment/118013758#Comment_118013758

I'm wondering does the employer have any right to force her to take annual leave before the resignation date. She'd prefer to go straight from one job to the next, maybe take a few days in between but ultimately would be happier to take pay in lieu of most of the holidays. The new job is scheduled to start immediately after the resignation date.

https://www.boards.ie/discussion/comment/118014387#Comment_118014387

Exactly, taking holidays before the resignation date complicates the whole thing. Today there are X days annual leave accrued which HR will give a statement of. By the resignation date there will be X + Y but HR won't admit that number in advance.

It's easier now that you've reminded me that you still accrue during leave; just pick an end date, figure out how much annual leave you'd have and stop coming to work that many days before, but she'd much prefer to pick an end date and get paid what's been earned up to that point, there's nothing to dispute.

https://www.boards.ie/discussion/comment/118015181#Comment_118015181

30 days notice is this Friday the 15th, but it's a busy time and she'd need to train in her replacement so taking pretty much the rest of the time as leave wouldn't suit anybody. She likes her colleagues and manager so wouldn't want to leave them in the lurch more than she has to.

Good to know public servants are included in the Act, it's what I thought but wanted another opinion.

The FTW contracts were definitely on dodgy grounds. There was nothing specific or temporary about the actual work, the only thing limited was the pot of money they were paying her from. 9 contracts over 7 years would definitely qualify for a CID I think! But any time it was queried HR claimed it didn't apply to student occasional contracts (even though she hadn't been a student for at least 3 years). It was never worth kicking up a fuss over since there was always another small pot of money found at the end of the contract to tie to the next one since the position was fundamental to workings the department. Stressful times though every 6 months or year while you're waiting for confirmation!

There apparently is a rep but they're useless from what I'm told.

edit: clarified notice date

13-10-2021 8:45pm

Why does it matter if it’s a busy time or whether she needs to train up her replacement? They want her out on annual leave before her finish date, that means they don’t care if it’s busy or if the person replacing her is trained up. Let her take her paid days off, have a rest and be fresh for her new job. Though the employer has to pay her for any unused annual leave days at the end of her employment, I’m not sure that the employee can dictate that arrangement instead of taking annual leave during the employment. And if they have given more than 30 days notice, assuming that 30 days to end day begins next Friday, they would appear to have given the correct advance notice.

This is kind of unusual, in most cases when people hand in notice, they’d like to get out the door as quickly as possible using up their AL for the last days of work.

topmanamillion · 13-10-2021 8:49pm

Agree with mrslancaster, she needs to talk to her union.

I know of a person who was told something similar. Had a 2 min phonecall with their union who told them it was bs. They then informed their management in writing of their conversation with their union and that they wouldn't be extending their end date and expected their holiday pay settled in full. If there was any deviation from that the union would be on to them. This person also worked in the public service.

HR are pulling a fast one to try and eek more time out of your partner.

13-10-2021 8:51pm

https://www.boards.ie/discussion/comment/118016254#Comment_118016254

Unless I’m reading the op incorrectly (possible) it isn’t the employer who wants to extend the end date, it is the employee.

dotsman · 13-10-2021 9:14pm

Op, like you I'm not sure if things are different in the public sector, but would doubt it. I do know in a previous company I was in, HR tried to pull the exact same thing with a colleague when he resigned. I remember the 2 of us fishing around and found the specific rules regarding holiday pay which he then took to HR and basically told them to go f themselves and they backed down and apologised.

A very quick google finds the following on Citizen's Information:

Your employer decides when annual leave may be taken, but this is subject to a number of conditions. Your employer must:

Take into account your family responsibilities, as well as the available opportunities for rest and recreation.

Discuss your annual leave with you (or your union) at least one month before you are to take the leave.

and

If you are leaving a job without taking all the annual leave you are entitled to, your employer must pay you for the days you have not taken.

...both taken from this page: https://www.citizensinformation.ie/en/employment/employment_rights_and_conditions/leave_and_holidays/annual_leave_public_holidays.html#l442ae

If you stop work without taking all the annual leave you are entitled to, your employer must pay you for the days you have not taken. Some employers may offer leave instead (or ‘in lieu’) of notice. However, this sort of arrangement is not covered by legislation, so you would have to agree this with your employer.

..taken from this page: https://www.citizensinformation.ie/en/employment/starting_work_and_changing_job/changing_job/giving_notice.html#lff0b9

Basically, assuming your fiancé only has to give a months notice, they can't demand that she take her holidays prior to leaving (as they must give at least 1 month's notice) and must pay any accrued and untaken leave entitlements as part of the final pay.

However, it is always best to leave a job on good terms (at least with the people that matter in that job). Does she have a manager (or other people in senior roles) who can take this to HR on her part, or would give her a reference etc as she may burn bridges with HR if they are as incompetent as they appear.

13-10-2021 9:39pm

Again, reading what the op has posted, his partner has given notice already, and there is excess of 30 days until the finish date and she has already been informed that leave must be taken before the end date, so if she was told say 35 days before end date, at least 5 days have to be used as AL before she finishes.

mrslancaster · 13-10-2021 10:21pm

If Friday is 30 days then AL would be from 15th Nov. What is her last date and how many days AL does she have left

13-10-2021 10:29pm

https://www.boards.ie/discussion/comment/118016750#Comment_118016750

Would it not be 30 days from when she was informed she needed to take AL up until the 15th November? For example, if she handed in notice on Monday 11th with leaving date 15/11, then if they told her she had to take AL before leaving, and had to give her 30 days notice of AL, she would have to take at least a few days before the 15th. It’s persnickety, but the op thinks the employer is doing something illegal so the dates matter.

TheChizler · 13-10-2021 10:55pm

https://www.boards.ie/discussion/comment/118016254#Comment_118016254

I would have thought the opposite? They're accepting the proposed resignation date but saying to go on leave for a number of days between now and then. I guess in their eyes they're paying out less than they would if she was getting paid for actually working up to the 15th and getting a lump sum on top of that for leave.

mrslancaster · 13-10-2021 10:55pm

https://www.boards.ie/discussion/comment/118016796#Comment_118016796

Yes you're right and the dates do matter. Op said GF has given her notice 'for next month' and then '30 days is this Friday' which I think I read incorrectly. The date notice was given, number of weeks notice and unused AL are important.

13-10-2021 11:03pm

https://www.boards.ie/discussion/comment/118016958#Comment_118016958

Which is perfectly legal if she is still employed beyond the 30 days notice they are giving her to take annual leave.

TheChizler · 13-10-2021 11:03pm

https://www.boards.ie/discussion/comment/118016238#Comment_118016238

She is on good terms with her actual colleagues and immediate management and would like to help them out by being around in her last few days. Once her manager informed HR they had agreed the employment would be terminated on the 15th and HR said she couldn't work solid between now and then and get paid her leave in her final wages, she would have to use her leave balance first or lose it.

https://www.boards.ie/discussion/comment/118016262#Comment_118016262

Apologies if I wasn't clear. Employee and manager are agreed on the date, nobody wants to change the date.

TheChizler · 13-10-2021 11:06pm

https://www.boards.ie/discussion/comment/118016383#Comment_118016383

Thanks, my gut said the rules were something like this.

Your employer decides when annual leave may be taken, but this is subject to a number of conditions.

I read that as the employer can specify when the employee is allowed to take leave, but can't dictate that they take it if they don't want to (which is essentially what is happening here), which is what you are saying.

However, it is always best to leave a job on good terms (at least with the people that matter in that job). Does she have a manager (or other people in senior roles) who can take this to HR on her part, or would give her a reference etc as she may burn bridges with HR if they are as incompetent as they appear.

Agreed nobody wants to burn bridges, though the person that would be giving the reference (unless they change procedure) is on her side and doesn't want her to leave at all. This is all probably an academic exercise on my part, I definitely get more riled up about the employer's shenanigans than she does!

Darc19 · 13-10-2021 11:06pm

Looks like she wants to be paid on the double.

Work til last day, get paid holidays and start working the following Monday in the new job.

Not how it works.

Employer can tell you (within reason) when to take leave . Employer is stating that leave needs to be taken before she leaves, otherwise she loses it.

Also, she is resigning. It would be different if she was being made redundant.

maestroamado · 13-10-2021 11:10pm

https://www.boards.ie/discussion/2058212913/employer-refusing-to-pay-holiday-pay-after-resignation

My knowledge of this is people can only get 12 months/52 weeks work/pay in one year for revenue... if your friend gets paid while not in the employment there may be questions as to how they worked this extra time....

i have really only flashed through this but i am assuming your friend wants to start the new joy while getting paid annual leave from old work....

TheChizler · 13-10-2021 11:11pm

https://www.boards.ie/discussion/comment/118016750#Comment_118016750

https://www.boards.ie/discussion/comment/118016796#Comment_118016796

Is that correct though? They need 30 days notice to agree to leave from what I remember (unless the employer agrees to waive the leave), but it doesn't mean that they can demand you take leave at any particular time as long as they give 30 days notice?

For arguments sake we'll say notice was given Monday 11th, termination date Friday November 15th and we'll say there are 15 days currently accrued, so 17ish by the termination date.

I don't think there's anything illegal being demanded around notice, just that they're trying to specify when to take leave in general.

13-10-2021 11:19pm

Employers specify when AL must be taken all the time, an example would be days between Christmas and new year when a lot of factories close, some Solicitor firms make staff take days in August when the Courts are on holiday.

Your interpretation could be right, but is it worth the fight? If your partner is unhappy there and feels she is being mistreated, take the AL and get out of there as soon as possible, let them sort their own mess out with new staff at a busy time. Get a good reference and chill out before the new job starts, life is too short to be getting wound up by these sort of things.

TheChizler · 13-10-2021 11:27pm

https://www.boards.ie/discussion/comment/118017029#Comment_118017029

Looks like she wants to be paid on the double

Yep exactly. It's happened to me in every job I've left and it's certainly not uncommon. If you had no pressing need to take three weeks holiday in the next month and had the option to get paid a lump sum why wouldn't you take it? She'd like to take some days but not all.

Employer can tell you (within reason) when to take leave . Employer is stating that leave needs to be taken before she leaves, otherwise she loses it.

See that's the bit there's disagreement on, can an employer demand you take leave in a certian period? I know it's legal at certain times when the workplace is closed, Christmas for instance, but can you you tell one specific employee to take leave during the normal year? And I don't believe it's possible to lose the leave entitlement/pay outside of carrying it over to the next working year.

TheChizler · 13-10-2021 11:32pm

https://www.boards.ie/discussion/comment/118017039#Comment_118017039

I don't see how this would be a problem, Revenue have no problem with people working multiple jobs at the same time. I'm questioning why can't the unused leave pay be added to her final wages, it's happened to me multiple times before and the only difference from Revenue's POV is the gross pay for that period is larger than usual.

mrslancaster · 13-10-2021 11:32pm

Using those dates, if your GF gave notice on 11th Oct to finish on 15th Nov then there is insufficient time for 30 days notice and then to take 15 days AL.

30 days out would start on 10th Nov so she could only use up 4 days (10,11, 12 & 15th). She would have 11 days left plus extra accrued AL up to the 15th Nov. She would have to be paid for those unused days imo.

TheChizler · 13-10-2021 11:35pm

https://www.boards.ie/discussion/comment/118017085#Comment_118017085

Probably not worth a massive fight, I'm probably putting more effort in here than will go into actually resolving the situation! She's massively relieved to be out of there and into somewhere she hopefully won't be messed around. Thanks for the input!

TheChizler · 13-10-2021 11:37pm

https://www.boards.ie/discussion/comment/118017126#Comment_118017126

That's what I was thinking too, assuming they have the right to demand 4 days once 30 days notice is given.

TheChizler · 13-10-2021 11:47pm

I'm sure the people actually involved will come to a happy compromise, I just tend to get very principled when it comes to this kind of messing around!

I'm hoping the next battle isn't the pension. A coworker in a similar situation left a few months ago and said that they were told what they had paid into the pension was gone and they couldn't get back. I assume they misunderstood and what the HR person meant is that it couldn't be paid out as a lump sum immediately as they were on the scheme more than two years, they would have to wait to retirement to get it back which is fair. Based on the experience with HR I wouldn't doubt the HR person believing the university owns the pension now.

maestroamado · 13-10-2021 11:53pm

https://www.boards.ie/discussion/comment/118017123#Comment_118017123

All i am saying that is what i was told some years ago when the company was changed the policy of carrying unused days... It may have been just that they didn't want the admin hassle but that's what we were told...

TheChizler · 13-10-2021 11:57pm

https://www.boards.ie/discussion/comment/118017187#Comment_118017187

Ah the old Revenue/GDPR/Health and safety/Insurance/Covid excuse. Someone just isn't bothered!

surrender monkey · 14-10-2021 1:49am

If an employee leaves employment with unused annual leave then the employer is legally obliged to pay for the unused annual leave. Also an employer can dictate when you can take annual leave but must give the employee one months notice of the requirement to take leave. It's all there on citizens info ....

TheChizler · 14-10-2021 8:33am

https://www.boards.ie/discussion/comment/118017319#Comment_118017319

So an employer could turn around on January first and say in 30 days you must take two weeks leave and a month later take the remaining two weeks, assuming you can advance your balance? Basically force you to take your entire allocation before April? Doesn't sound right.

Quotes from citizens info up above say the employer can say when you MAY take leave, not SHALL (outside of shutdown periods).

bucketybuck · 14-10-2021 8:56am

I feel the 30 days thing in citizens advice may be overstated, the question for me is what would happen if this went before arbitration/a judge? What about the "reasonable person" aspect that judges do love to consider?

The employer has to have 30 days notice of forced annual leave, but the employee does not have 30 days service remaining, so what is reasonable?

The employer wishes the employee to use their annual leave during the notice period, is that reasonable?

The employee wants to work instead to "help out", but is that even relevant? The employer doesn't want them to help out and frankly thats their decision to make, after all they could put the employee on gardening leave if they so wished.

This is all just hypothetical of course but I don't think the "30 days notice" clause is a magic bullet here, not when it isn't physically possible for the company to give that 30 days notice. I certainly wouldn't like this case to get near a tribunal if I were the employee.

dotsman · 14-10-2021 2:18pm

https://www.boards.ie/discussion/comment/118017651#Comment_118017651

But the 30 days is set in stone. Her resigning has nothing to do with it. The 30 days notice is obvious, as it is unreasonable to expect people to take leave at short notice (and have nothing planned/booked etc). When it comes to parents, you could never expect a parent to arrange a holiday in under 30 days when their partner needs to apply for leave and the kids need to be taken out of school or summer course etc. That is the reason why the 30 days is there. On top of that, if the request is unreasonable, the employee has the ability to appeal - i.e. it would be very unreasonable to expect an employee to take all their leave at a really strange time of year etc, when it is not the norm for that industry/role.

The norm in most companies is that when a person resigns there is a discussion regarding leave. Just like the company may not want the opposite (a person resigns, gives a month's notice but has 15 days outstanding leave which they want to take, so effectively only works for 1 more week, leaving no time for a reasonable handover/replacement). Ideally, they should come to an agreement that suits both (which may include either option or a bit of both). If they can't reach agreement, then any leave that has already been approved is taken, and any outstanding leave is paid in the final wage.

Chris_5339762 · 14-10-2021 2:27pm

Take the annual leave, all of it, and sod them.

No matter WHAT HR in the public sector eventually say about paying back annual leave after you've left, finance will NOT pay that out, no matter what you do or who you threaten with solicitors.

bucketybuck · 14-10-2021 3:15pm

https://www.boards.ie/discussion/comment/118019569#Comment_118019569

I don't know why you are explaining the reasons for the 30 days notice to me, its still a quite simple point here:

The company cannot give 30 days notice because the employee doesn't have 30 days remaining.

Thus you end up with a judge making a decision on whether each party is acting reasonably. Is it reasonable to ask the employee to use up their leave during that same notice period? Personally I think it is, or could be to the extent that I wouldn't like to test it in court.

14-10-2021 3:18pm

https://www.boards.ie/discussion/comment/118020031#Comment_118020031

Think you need to read the thread again.

bucketybuck · 14-10-2021 3:49pm

https://www.boards.ie/discussion/comment/118020050#Comment_118020050

I think your post contributed **** all to anybody.

14-10-2021 3:55pm

https://www.boards.ie/discussion/comment/118020197#Comment_118020197

As has been mentioned a few times, there was more than 30 days remaining when op’s partner was told AL had to be taken, so there was time for at least part of AL to be used up before end date. So, on reflection, did your post contribute anything?

surrender monkey · 14-10-2021 6:02pm

https://www.boards.ie/discussion/comment/118017586#Comment_118017586

Well that would be unreasonable behaviour from the employer. Anyway is that not in your girlfriend's favour no? She has handed in one months notice, legally if they require her to take leave at a time that's suits them they must give 30 days notice. Therefore they legally cannot force her to take her unused annual leave before her notice period expires. Or am I missing something ??

dennyk · 15-10-2021 11:19am

https://www.boards.ie/discussion/comment/118020031#Comment_118020031

The "30 days" (technically "one month", but that's a minor nitpick) is explicitly defined in statute, however:

" 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—...( b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence..."

There is nothing in the law that says the employer may require an employee to use their leave with less than a month's notice if that is somehow deemed "reasonable"; the law is the law, and unless the employer and the employee mutually agree on using that annual leave with less notice, the employer has no recourse. If they cannot consult with the employee about using their leave at least a month in advance because the employee has given notice and won't be working there in a month, then they cannot require that employee to use their leave, and that is that. The employer is free to send the employee home on gardening leave for the duration of their notice period, if they don't want them working, but they'll still have to pay out that employee's annual leave balance in full at the end of their employment (in addition to paying them normally during their notice period).

I'm also not sure why you think a judge would accept an employer's argument of "But we don't want to pay out this employee's annual leave and also pay them for their notice period as required by law..." as a reasonable argument. Obviously many employers don't want to pay their employees (especially their departing employees!) any more than they absolutely have to; that's why the laws governing such things exist, to ensure that employees are treated fairly.

Jim2007 · 15-10-2021 3:18pm

https://www.boards.ie/discussion/comment/118022972#Comment_118022972

You are a long way from the law though..... The law requires reasonableness and consultation not agreement. The employee was aware of the rules on holidays and made the decision to resign. The employer reminded the employee of the rules and the fact that they would loose their entitlement should the fail to take their holidays as part of their notice period. That is the employer being as reasonable as they can be in the circumstances.

TheChizler · 15-10-2021 4:52pm

https://www.boards.ie/discussion/comment/118024378#Comment_118024378

No actually the first mention of the requirement to take holidays before the finishing up date happened after resignation. Nothing in the contract about this situation either.

TheChizler · 15-10-2021 4:55pm

https://www.boards.ie/discussion/comment/118020927#Comment_118020927

If they can force you to take arbitrary leave at all then yes that would be my interpretation too, that notice is required.

TheChizler · 15-10-2021 4:56pm

https://www.boards.ie/discussion/comment/118022972#Comment_118022972

" 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—...

This might be nitpicking but can you grant something that hasn't been requested, or that isn't accepted at least?

15-10-2021 4:57pm

I worked in the public sector. The rule is you take your allocated annual leave allowance before leaving/retiring, simple as that. Your resignation date occurs upon completion of employment, including whatever leave you have been owed/taken. You can’t be considered resigned from your role until that, and you won’t get paid after resignation date. Simple as that.

TheChizler · 15-10-2021 4:58pm

https://www.boards.ie/discussion/comment/118024861#Comment_118024861

Ok that might be the policy, but legally where is this backed up?

15-10-2021 5:02pm

https://www.boards.ie/discussion/comment/118024378#Comment_118024378

They can't lose their entitlement. If leave is not taken before leaving the company, they are entitled to be paid for it. The only question to be answered is whether the employer can force the employee to take leave between now and the employment end-date.

Given that the law states a requirement of 1 month's notice, and does not have any exceptions relating to employment termination, I can not see any way for the employer to force the employee to take the leave.

15-10-2021 5:08pm

https://www.boards.ie/discussion/comment/118024864#Comment_118024864

I don’t honestly know the legalities, but every single person I have known in the public service has been forced to take all leave before resignation/retirement. I’ve never known otherwise. Yeah, maybe if you took them to European court and made a case etc, I’m sure it could possibly succeed under some circumstances. It’s made very plainly clear in any contracts have known of though, that all leave must be taken before resignation.

surrender monkey · 15-10-2021 7:52pm

https://www.boards.ie/discussion/comment/118024861#Comment_118024861

I work in the public service too my place had that policy as well untill one of the solicitors employed there wanted to be paid for their untaken annual leave after they gave their notice and it was refused. She sent them the section of an Act that showed they were acting unlawfully and they backed down. Wish I could find it now .

surrender monkey · 15-10-2021 7:57pm

Found it (I think 🤔)

https://www.irishstatutebook.ie/eli/1997/act/20/enacted/en/print#sec23

Employer refusing to pay holiday pay after resignation

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