Can Former Employer Counter-claim

[ULA]

Do you only have evidence for being given the full 8 bank holiday days in that year 2021?.

All other years have no evidence for giving you the full entitlement despite being part-time and only entitled to a proportion of bank holidays - is that correct.

[Binuchander]

Here is the full chain of events as I see it:

Email conversation 25.10.11 - Starting salary agreed for 2 days a week, Annual leave confirmed for 7 weeks a year and stated by the company in the email as '14 days per annum + 8 public/ statutory holidays' - note how the annual leave entitlement is stated in the pro-rata form but bank holidays are not, could it therefore be assumed that the 8 public/statutory holidays are not designated as pro-rata?

Final contract sent to me 31.10.11 - states starting salary as well annual leave/ bank holiday entitlements stated as 'You will be entitled to 7 weeks annual leave pro rata (which equates to 14 days pro rata) and 8 public/statutory holidays or days in lieu with pay each year between your appointment and its anniversary date'.
Contract also stated 'You are entitled to 2 hrs/week protected time for professional development, this allocated time will be flexible, according to the needs of the company and the employee'.

Start date of job 5.12.11.

At various points in the following years, when I requested leave for professional development it was declined as I was told that I benefitted from all bank holidays that fell on my days of work - but I don't have this in writing and I don't think that in every year I was given extra leave to make it up to 8 bank holidays, I was just given all bank holidays that happened to fall on my days of work.

In February 2019 I made a request to reduce my hours from 24 per week to 18 per week and I also requested confirmation of my revised annual leave entitlement. The response I got from HR was:

'Your annual leave entitlement from 1st May 2019 - 30th April 2020 is
18hrs x 6 weeks = 108hours + 4hrs (xmas day)+ 6hrs (boxing day) + 4hrs(new year's day) = 122 hours'.

Does that fact that the employer offered me additional leave in lieu of Bank holidays in the above extract from the email count in my favour?

The company then grew and other staff members doing the same job as me joined in 2019. Over time, It then came to my attention that these staff members were allowed to take professional development leave but I wasn't so I queried this with HR on 3.2.21 asking:

'Can I just check re bank holidays. Mr A (Director) has previously mentioned I would get all the bank holidays but then no additional leave for professional development. I understand Miss X (employee doing same job as me) gets bank holidays pro rata but then claims back time for professional development. Can I confirm what my arrangement is - I'm happy to do either but I would just like to be clear'.

The response from HR was 'You get all 8 days bank holidays. For 21/22 I have added 1 day as all of the others fall on a Monday or Tuesday and so you will get these anyway'.

So in other words, I was swapping 104 hours paid professional development time per annum for a small number of additional bank holidays.

The next thing I have evidence for is my entitlement to holidays in 2022/23 sent on 20.4.22. The annual leave year ran from May 1 to 30 April every year. There was a planned extra bank holiday in 2022/23 so 9 in total for the year although actually ended up being 10 bank holidays after the Queen's passing and at this stage the absence summary states that I was entitled to 9 bank holidays in 2022/23.

The employer then decided they wanted to revise my contract of employment and offered me an increased wage with increased hours and a new contract of employment from 7.6.22 within which it states:

'Your contracted hours of work provide for at least 4 hours per week professional development time pro rata. Your flexibility may be required from time to time to suit the needs of the employer in particular when cover for holidays and sickness dictates.. 115.5 hrs/year minus Mandatory Training (13.5 hours deduction) = 102 hours'

as well as:

'Your holiday year begins on 1^st May and ends on 30^th April each year, during which you will receive a paid holiday entitlement of 30 working days pro-rata which equates to 155.37 hours. In your first holiday year your entitlement will be proportionate to the amount of time left in the holiday year.

Conditions relating to the taking of holidays are shown in the Employee Handbook to which you should refer.

In addition to the annual holiday entitlement you are allowed the following public/bank holidays each year with pay or alternative days as decided by us:

New Year's Day The last Monday in May
Good Friday The last Monday in August
Easter Monday Christmas Day
The first Monday in May Boxing Day

Entitlements are pro-rata for part-time employees.

In the event of termination of employment holiday entitlement will be calculated as 1/12th of the annual entitlement for each completed month of service during that holiday year and any holidays accrued but not taken will be paid for. However, in the event of you having taken and holidays in the current holiday year, which have not been accrued pro-rata, then the appropriate payments will be deducted from your final salary'.

I accepted this new contract and it was clear that both annual leave and bank holidays were pro-rata within it. I was then allowed to take professional development leave, only received pro-rata bank holidays and then decided to move on from the company and left work on 31.5.23 after giving adequate notice.

When I handed in my notice, I received an email stating that due to the additional bank holidays in 2022/23 and 2023/24 I owed the employer 5 hours 50 minutes in total. This had been worked out as:

-3hr 20min for 22/23
-2hr 30min for 23/24
-5hr 50min in total

The corresponding amount of pay was deducted from my May 2023 pay which I accepted as within my revised contract of 7.6.22 it does state:

'in the event of you having taken any holidays in the current holiday year, which have not been accrued pro-rata, then the appropriate payments will be deducted from your final salary'

Although on reflection I can now see that the above statement in my contract does refer to the 'current year' and not previous years.

The statement made by my ex-employer in the ET3 about their claim that I owe them money back contains lost of factual inaccuracies such as the wrong hours worked and also the wrong payscale which has led to them coming to a very arbitrary amount that they believe I owe them.

Any advice you can offer on how best to respond to this situation in my witness statement would be most appreciated.

[Binuchander]

Documents have now been shared in line with case management orders and my former employer has not provided a statement of annual leave taken vs entitlement so I assume they have dropped that claim.
The issues I am having now is that the employer is stating that as I am taking action against them, it is my responsibility to create the bundle - this is likely to be around 120 pages long.
Is it possible to ask the employment tribunal for a decision on who should create the bundle? Would this lead to a preliminary hearing?
Thanks in advance.

[ULA]

Typically it is the respondent who creates the bundle particularly if they are represented.

[Binuchander]

Please could I request some advice on creation of the bundle. The respondent is refusing to produce the bundle and is insistent that I do it as I have brought the claim.
I have asked the ET to offer directions to both parties but they wrote back saying they cannot get involved in this matter.
I have also sent the below link to the respondent on which it says on page 9 para 14 that the respondent usually creates the bundle.
Is there any advice you can offer on how to resolve this as both parties do not have professional representation? I have minimal IT skills and limited access to computers whereas the respondent has multiple computers at work with in excess of 10 staff and a 7 figure turnover.

https://www.judiciary.uk/wp-content/...t-20180122.pdf

thanks in advance

[Binuchander]

I received a letter from the employment tribunal last week saying that my employers counter claim has been accepted and the planned hearing for my unlawful deduction of wages claim has been cancelled. I have 4 weeks to respond to their allegations and then a new trial date will be set
I have asked my former employer to provide a list of all annual leave taken vs actual entitlement and they have refused to do this saying that they will only respond to orders from the judge.
Any advice you can offer on how best to respond would be much appreciated.

[ULA]

So to understand this:

1. The ET has cancelled your hearing date was there any further instruction on their correspondence.
2. You have requested the information from ex-employer was this a) after you received the ET correspondence b) I presume you did this in writing?

[Binuchander]

Hi ULA

in answer to your questions:

1. Yes the original hearing date about my claim had been cancelled and the only instruction I have received is that I have 28 days to respond to the employment tribunal if I wish to contest the counter claim (which I do). It also says ‘The hearing will be relisted once a response to the counter claim has been received.’

2. I have requested the information from the ex-employer AFTER receiving the ET correspondence and can confirm this was request was made In writing via email.

Any advice you can offer on how I should respond to the ET would be most appreciated.

[ULA]

From what I am reading the have made allegations which part of what you send back to the ET and the respondent will have to be response to those.

How relevant/importent is the document you have been requesting to you being able to respond to the allegations?

[Binuchander]

I would say it is very difficult to respond to the allegation without understanding how they have calculated my annual leave entitlement and what has been taken and when. I have access to some emails about leave requested and approved but certainly not from 2011 all the way to 2022 which is the period the claim is for

[ULA]

I would say you are going to have to try as best you can to defend the allegations.

Include in this I suggest you should detail each and everytime you have tried to contact the respondent in regard to asking them to provide the evidence of leave requested and taken over the relevant period. Set out that each and every request has been denied and give the date of their refusal.

Make sure you get this in the timescale needed.

[Binuchander]

Thanks ULA - I have been reading about ‘Further and better particulars’. Am I able to use this to get further info from my ex-employer?

[Joey1234]

If I have had a pay rise and a member of staff finds out and tells 40 members of staff and causes a big atmosphere cans I do anything about this.

[ULA]

Joey1234 Please can you start your own thread and not piggy back on another poster's thread. Many thanks

[ULA]

A request for Further and Better Particulars I believe is under Civil Procedure Rules (18). CPRs do have some cross over into the Employment Tribunal but this court does have its own procedural regulations.

A thought may be that you contact the respondent and say if they do not provide the requested information within 7 days then you will make an application to the ET for further and better particulars. However this will not be a quick process and doubtful whether it would be completed before the deadline you currently have in place.