Holiday Pay Back Payment

[HonestWorker]

Good day,

I noticed that my previous employer has not accounted for any holiday allowance. The job was a casual 0 hour contract with wages payable weekly. The contract states that any untaken holiday is paid in lieu upon request of P45 within the leave year of the final assignment.

The final payment I received was on 31st of March 2018 (last week of that financial year). I requested the P45 in March (not in writing, unfortunately) and received it over email in the second week of the following financial year (April 2018). Their email acknowledges that I have requested the P45 and has the form attached.

When I recently contacted them, they requested a proof of my P45 request in writing, which I couldn't provide but I provided them with their acknowledgement of my request.

Basically their case is that I did not request the P45 within the year of leave. I believe that this is a precedent and now they are trying to drown me in technicalities.

As advised over the phone by ACAS, I am too late to apply for an employment tribunal (The contract ended 8 months ago). However was advised that I can still submit a claim in county court or small claims. I also believe that the employer has done this on a large scale and I am not the only one affected, I have still not notified others. I was urged by the ACAS advisor to still try and resolve this directly with the employer.

Next steps I will take is:

• submit a formal claim to their payroll officer, outlining the calculated unpaid holiday allowance along with all evidence.
• notify them that I will submit a claim within 14 days if this has not been resolved
• potentially contact other employees who have not been paid

I believe that the employer is paying holiday allowance only if workers request it and is turning a blind eye if they don't.

My question is - do I have a case?

Many Thanks!

[ULA]

So long as they are not re-hiring on the basis of “continuity of employment” (i.e. they are treating it as though the redundancy was never made), then you are not required to return any statutory redundancy payment

For individuals on a zero hours contracts, you are entitled to accrue holiday on the basis of a pro-rata amount of 5.6 weeks holiday, which is equivalent to 12.07% of hours worked over a year. The 12.07% figure is calculated by taking 5.6 weeks’ holiday and dividing it by 46.4 weeks (which is 52 weeks less 5.6 weeks). So, holiday is accrued at a rate of 12.07% per hour and as an example if you worked 20 hours in a week, you would become eligible to take 144 minutes of paid leave.

When was your previous company’s leave year? I presume from what you have said it is April to March. Where you there for the full holiday year April 2017 to March 2018? In which case you need to calculate your holiday entitlement from April 2017 until your last working day, based on the number of hours you worked less any holiday you have taken. The hours remaining equate to your accrued but untaken holiday and for which you are due payment.

You should not need to request a P45 it is your employer’s obligation to provide you one on leaving their employment, the fact that you are zero hours contract worker is irrelevant. So, I suggest that when you are providing proof of the holiday pay that they owe you also inform them of their obligation which therefore negates the fact that you have to request one in writing.

[HonestWorker]

Thanks for your reply, ULA!

I worked there from mid-april 2017 until march 2018.

They stated that:

Annual leave year commences 01 April and ends 31 March. Untaken leave is not carried over.

According to their records, I requested my P45, which automatically triggers payment of untaken holiday, in April 2018. The P45 shows no salary or holiday as this was the beginning of a new leave year.

I believe this is not only unethical but also unlawful. So far it seems they will do whatever it takes to not pay me.

Thanks!

EDIT: their contract says that "when a P45 is specifically requested by the worker within the leave year of the final assignment the worker shall be entitled to a payment in lieu of any untaken leave ..."

They are going after the fact that I left employment in a different financial year than the year of my final assignment.
Surely the law overrules this?

[ULA]

So your total holiday pay would have been pro-rata for the period mid April to your leaving date in March. If you left before 31 March 2018 then you would have been entitled to payment for any pro-rata accrued but untaken holiday pay up to this date. Leaving before the 31 March or even on that day (which was a Saturday) would entitle you to be paid for the leave accrued but not taken during the holiday year April 2017 to March 2018.

The company has to detail your leaving date on the P45 which would be the last working day of your final assignment and if I am understanding you correctly this would be a date in March 2018.

[HonestWorker]

On the P45 they've put a leaving date of 6th of April 2018, I have no written proof that I requested it roughly 3 weeks prior. I remember having to ring several times to obtain the P45 for my new employer.

I now checked and my last payslip is dated 29th March 2018.

I also have a P60 statement from dated 5th of April 2018, which mentions nothing about holiday entitlement or holiday taken. (I did not request any paid statutory leave throughout my employment with this company).

If this matters, the total pay to date on the final payslip is the same as on the P60 form.

[ULA]

What may help is for me to understand what is says in your contract about holiday entitlement, notice period and termination. Please can you post up the relevant clauses.

Had you handed in your notice prior to asking for your P45?

[HonestWorker]

Hi ULA,

Here is the Statutory leave part in the contract (censored the PII bits). The company/employer was an agency offering part-time work (if that matters):

"#. Statutory Leave:
a) for the purpose of calculating Statutory entitlement to leave under this clause, the leave year commences 1st April and ends 31st March.

b)Under the Working Time Regulations 1998, the Worker is entitled to Statutory paid leave per leave year. Leave entitlement is not additional to Bank Holidays. All entitlement to leave must be taken during the course of the leave year in which it accrues and none may be carried over forward to the next year.

c)The right to paid leave only accrues once the Worker has been engaged on assignment through <agency name>. Entitlement to leave accrues in proportion to the amount of time worked by the Worker on Assignment during the leave year. The amount of the payment to which the Worker is entitled in respect of such leave is calculated in accordance with and point in proportion to the number of hours which the Worker has worked on Assignment during the twelve weeks prior to their taking paid annual leave. Payments for annual leave will be calculated on the basis of standard rates paid during the Workers normal working hours (ie those which do not attract enhanced rates of pay).

d) Where the Worker wishes to take any leave to which he/she is entitled, he/she should notify his local <agency name> branch in writing of the dates of his/her intended absence. The amount of notice required by the Worker should be at least twice the length(minimum five working days) of the period that he/she wishes to take. Unless <agency name> informs the Worker in writing that it is not possible for him/her to take leave on the specified dates, the Worker shall be entitled to take up his/her notified leave entitlement.

e) In the course of any Assignment during the first leave year and thereafter at company discretion the Worker is entitled to request leave at the rate of one twelfth of the total holiday entitlement in each month of the year.

f)Where this contract is terminated by either party and a P45 is specifically requested by the Worker within the leave year of the final Assignment the Worker shall be entitled to a payment in lieu of any untaken leave whereupon the amount of leave taken is less than the amount accrued in accordance with Clause #c). Similarly any overpayment of leave entitlement made to the Worker may be deducted from any payment due to you at any time upon termination of this Agreement.

g)None of the provisions within this Clause shall affect self-employed Workers."



A couple of points here:

• I was not self-employed
• There is no mention of notice period in the contract
• I did not hand in written notice - I called my manager at this agency to notify them that I will no longer be working for them and that I require them to send me a P45 form. I had to do so 2-3 times over the course of two weeks for them to send it two weeks after that. (Which was already in the next leave year)
• They have conveniently put the date of 6th of April 2018 as my leave date in the P45 form
• They now claim that according to their records I have requested the P45 in the next leave year, which was not in the same leave year as the final assignment

As for the contract as a whole - I found something else, which triggered my suspicion to the legality of it:

"#. The Worker is under no obligation to accept an offer of an assignment, but if he/she does so, he/she shall comply with the following conditions:
...
g) not to discuss salaries with the Client, his/her employees or fellow <agency name> staff. ..."


Surely that's more than a little bit odd?

I can post the contract in full when I get home later, if it would help?


Thanks again for your time and help!

PS: I apologize if sharing of any of the text above is not with accordance to this board's rules, I tried to keep them.

[ULA]

Thank you for this extra information, which gives me a better understanding. So, you worked for an agency and were assigned work on a part-time basis.

In terms of the clauses about the calculation for holiday entitlement they seem to be correct.

The need to request your P45, given as you say there is no notice period required, indicates to the agency that you wish to effectively “leave their books” and are no longer available for work via them.

Your case it going to hinge on your being able to confirm that you made the request for your P45, effectively leaving them prior to 31 March 2018, in order for them to pay any accrued but not taken holiday entitlement. The 2-3 times over the period of 2 weeks, which I presume was prior to the end of March, you had to request and chase for your P45 where these by email or did you just call in? If the former, then it would be good to find copies of them to provide as part of the claim to the payroll officer. If the latter can you remember what dates you called in, roughly what time and who you spoke to. This would be very useful in support of your claim for this outstanding money to be paid. In addition, if you can remember the first date you called in this should effectively be the leaving date on your P45.

In regard to the concern you raise about the following being odd "The Worker is under no obligation to accept an offer of an assignment, but if he/she does so, he/she shall comply with the following conditions:

g) not to discuss salaries with the Client, his/her employees or fellow <agency name> staff. ..."

It is basically saying that you are not obliged to accept an assignment in other words you have the right to turn it down, which is acceptable. The not discussing salary is also not untoward, agencies often, for commercial reasons, do not want the client to know what the agency staff are being paid because then the client may be able to work out the additional margin they are being charged for using agency staff. In regard to fellow agency staff again a similar reason as they may not be consistent in the rates being paid.

No apology needed we just ask that posters redact identifying information which you have done.

[HonestWorker]

I called over phone notifying my agent of my leaving the job and requesting the P45 for use of my future employers. I did not request it via email or in any other written form.

I have call history with the employer's telephone number (timestamps etc). I also know the name of my agent who I spoke to - they have since left the business, I will get in touch with them to see if they are willing to support my case.

Before all this, I will consult with solicitor on Monday. Would you recommend me doing anything else?

Thanks again.

[ULA]

Great call history will be very useful and the name of the agent even if they have subsequently left, that together with the details of the holiday pay you believe you are owed should be all that you need to write to the payroll officer requesting that the payment for the outstanding monies be paid.

[HonestWorker]

I presume they will refuse payment based on the fact that they already asked me for a proof in writing that I have handed in my notice. Nevertheless, I am willing to take them to county court if they refuse my formal claim (I have prepared a spreadsheet with detailed calculations of the amounts owed to me).

Please keep the post open, I wish to update it until this whole affair has been brought to a close.

[ULA]

Do please keep us posted and if you need any more support then you know we are here.

[HonestWorker]

Hi,

So I got a reply from this past employer. They listed the calls I mentioned saying that the agent has confirmed that I have not requested P45 in any of these calls.

They said that I requested it in a call on 11/4/2018 (last call I made to them before they actually supplied the P45 my current employer had been asking for) even though as leave date on the P45 they've put 6/4/2018? (I guess my call went back in time from their perspective )

I've also found out that a colleague I used to work with has just been paid out his holiday entitlement. (He left in January 2018, did not request a P45 but now they claim a P45 is automatically issued to an employee who has not worked for them for 12 weeks, his claim just got 'overlooked')

I am still failing to understand - how is it possible that accrued untaken annual leave doesn't pay out in the following tax year? Surely this would set a precedent where it matters what time of the year you quit such a job?

And also is this not a precedent - if an employee doesn't request a P45 and doesn't work for the agency for 12 weeks they will receive holiday pay, unless their last shift is within 12 weeks of the leave year?

[ULA]

It is not about tax year for holiday. Statutory holiday entitlement does not legally need to be carried over from one holiday year to the next except in certain circumstances. So if you leave during a holiday year you are only entitled to be paid accrued but untaken holiday for that leave year.

As per my post #8 this is coming down to their word against yours regarding the date you actually requested your P45. If is had been prior to the end of the leave year i.e. 31 March you would have been entitled to payment for your accrued but not taken holiday. The company is saying that the request was made in the new leave year and since you cannot carry over holiday it is lost and so is the right to be paid it.

Just to make you aware to take the company to Small Claims will cost you Court fees on a sliding scale dependent on the amount you are claiming, here is a link to the information http://howtotakesomeonetocourt.info/...ourt-fees.html

In light of this it may be worth contacting them again including the calculation of what you believe you are owed. I would also let them know you are aware of a colleague who did not follow the procedure of requesting a P45 but has been paid outstanding holiday pay because their last shift was within 12 weeks of the end of the holiday year, which seems unfair in that you at least contacted the company asking for your P45 before the end of the leave year. Also Include the screen shot of your call history in March to request your P45 which evidences that you have contacted the company. Inform them that if a settlement of the outstanding amount is not forthcoming then you will be taking the matter to the Small Claims Court. This may result in them paying all of or negotiating a sum that you feel may be acceptable, given the cost of pursuing a claim.

[HonestWorker]

Hi ULA,

Sorry, my last post was about their reply to my formal request (sending a screencap of the calls history as well as a spreadsheet with detailed calculation on the exact amount owed). In the same email I informed them that if my claim isn't resolved within 30 days I will escalate it to a Small Claims Court.

In their reply, they listed the calls in my screencap with explanation of what has been discussed in each (they said according to their 'IT system', I think their IT system has only the same log of the calls, no details of what has been discussed in them). Effectively this is my word against their.

In the log there is a call from the 11/4/2018 (the next leave year) - In their reply they claim that "Your P45 was issued when requested in the call on 11/4/2018", even though in said P45 my leaving date is 6/4/2018, which is clearly a mismatch. Can I use this as an argument of them not being truthful about this?

I will call them tomorrow to make a final attempt at resolving this with them.

I was also wondering if having legal professional prepare the paperwork for the claim is worth it?

Your replies are much appreciated!