Holiday pay deduction from final pay

[wayne d]

Hi I've been dismissed by way of redundancy but have taken more holiday than acrued and this has been deducted from my final pay. My contract is vague about such matters not specifically mentioning this scenario so I suspect the deduction may not legal. My contract States "the company shall be entitled to deduct from your salary all sums owing or otherwise payable from you to the company". Is this a bit ambiguous enough to not be safe for the company to rely on ? Thanks in advance.
Wayne

[ostell]

You took holiday that you had not earned and therefore the company is taking payment for that unearned holiday time. You were paid for holiday time that you were not entitled to. I think you would have a lot of trouble taking this further.

[ULA]

In my view overtaken holiday would be considered as a sum owing to the company and therefore payable back to the company.

Just as a matter of interest is there any clause in your contract that relates to "holiday on termination."

[Phaeton]

Or something like holiday will be accrued at x.x days per month worked?

[wayne d]

Hi there's no specific mention of "holiday on termination" or of overtaken holiday. The only statement in my contract is "the company shall be entitled to deduct from your salary all sums owing or otherwise payable from you to the company". Wasn't sure if this was enough or without ambiguity enough to take back the holidays. Obviously I've taken the holidays but had I know I was going to be made redundant I would have had the opportunity to cancel to preserve as much pay as possible. So the question is does my clause as quoted go far enough and is it clear and without ambiguity enough for the company to rely on? Thanks all what a fab community of legal Beagles we have here
Wayne

[ostell]

I think they have covered themseleves, you owed them for holidays taken but not earned and they have taken it back.

[ULA]

I agree that the deduction for overtaken holiday is a "sum owing" to the company and therefore needs to be paid back.

[wayne d]

Thanks all for your responses
Wayne

[mariefab]

In order to lawfully make this deduction there needs to be a specific clause agreeing that payment for overtaken holiday will be reimbursed.

"the company shall be entitled to deduct from your salary all sums owing or otherwise payable from you to the company". This clause doesn't mention holiday pay at all, so it doesn't qualify.

There was no overpayment when you took the holidays, there was just payment.
If employers are concerned about employees taking holidays that have not yet accrued they can simply refuse to authorise the holiday or they can have a relevant agreement in place.

See Hill v Chapell below:

http://www.bailii.org/uk/cases/UKEAT...0_01_2003.html

[wayne d]

Mariefab you are indeed as your name suggests thank you so much.

Wayne

[wayne d]

Just had a thought. I was not paid then had paid money taken back as my holiday was taken during a period I was yet to be paid for. On return from holiday I was made redundant then paid a week later. Is this likely to affect my case ? Thanks
Wayne

[mariefab]

I can't imagine why it should make any difference.

See WTR 1998 below.

http://www.legislation.gov.uk/uksi/1.../contents/made

Section 14 applies to accrued holiday on the Termination Date.
If, on the termination date, an employee has taken less than the holiday they've accrued the employer must pay them in lieu of the untaken amount. 14(2).
If, on the termination date, an employee has taken more than the holiday they've accrued the employer can only recover, or deduct, the overtaken amount where a relevant agreement is in place. 14(4).

Before the termination date you requested the holiday and the employer agreed you could take it. s.15.
You then took the holiday so you are entitled to be paid for it. s.16.

The failure to pay is an unauthorised deduction. See ERA 1996 s.13(1), (2) & (3) below.

https://www.legislation.gov.uk/ukpga...ns-by-employer

[wayne d]

Thanks Mariefab that gives me confidence and important information with which to challenge the deduction. On a side issue you asked me a question I've since answered on my other enquiry regarding pilon. I greatly appreciate your excellent advice.
Wayne