Holiday pay and Commission when Leaving a Job

[Marcus1975]

Hi,*
Just want some advice as have just left my old job and my company are refusing to pay outstanding holiday that was owed as well as commission that was earnt.



I gave a months notice then after two weeks was told I would be on Gardening leave and should remain available to work if called in.

When being placed on Gardening Leave I was told I would 'not to worry' that I would still be getting the holiday paid in my final pay packet however they have now come back quoting a section of my contract that they don't have to pay this.


8.5
Any outstanding holiday entitlement will be deemed to have been taken during your

notice period.



My question is if this is legal or not? Can they just take my outstanding holiday and deem it as used, I was under the impression that they should be paying this by law even if I hadn't been (verbally) promised this.



My second Question.

As the role is sales based (Furniture) I also earn Commission (bonus) and the January sale was a very busy time for us and I earned almost £4k during that period before being placed on Gardening leave.

Again they have come back and are refusing to pay this stating that because I had handed in my resignation before the commission was due to paid (which is normally a month in arrears) I have forfeited this as well.


7.6

No bonus will be paid to you in accordance with clause 7.2 or 7.3 above or at all, in

the event that you have issued or have been issued with notice of termination of

employment as at the payment date.



Can they enforce this, I understand they could potentially withhold part of the commission pending any possible refunds but don't feel it right that ALL the money is forfeited

I understand it is in my contract which I didn't actually get to almost 1yr after I commenced my 4yr employment with the company an that was just a copy sent in the post by them.

I started with ACAS conciliation however the initial response returned from my previous company is that they will not be paying any of this, do not wish to make an offer of part payment and that they stand by the terms of their contract.

Do I stand any chances with a Tribunal or will I just be*

Many thanks in advance for any assistance.

Marcus
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[ULA]

Hi, sorry just need to ask you a few more questions.

1. The clause 8.5 you posted up is clearly a sub-section of a clause 8, what is that clause entitled can you give me the clause either side, out of the complete context of clause 8 it is difficult to provide a meaningful answer.

2. Again I need the full context for clause 7 as well.*

Many thanks
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[Marcus1975]

Removed

[ULA]

Thanks for posting up the clauses which was very helpful. I have just deleted some details that I thought were personal and should not be on a public forum.

In regard to holiday it is clear that 8.4 allows for the company to require that outstanding holiday is taken during the notice period. However I think were you do have room to “negotiate” with your ex-employer is that firstly, you were led to believe that you were still getting your accrued but untaken holiday paid and secondly contractually you were required to give 8 weeks’ notice which you did. If this has followed through the company would have been required to pay you six week gardening leave in addition to the two weeks you worked. Accepting that you agreed to this (to cover off 6.12 i.e. you actually gave the required notice) I am sure you may have thought twice if you had not been assured you would be receiving your due holiday pay. I would therefore suggest that you write back to them on this basis to attempt to recover your holiday pay.

In regard to the bonus then I am sorry it is very clear from clauses 7.2 and 7.6 that bonus will not be paid if you have handed in your notice at the date the bonus payment is due to be made. I know from previous experience that commission/bonus paid staff were always checking whether they had clauses like this, which are not uncommon, to time handing in their notice.

Hope this helps.
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