Holiday Pay from Employer

[Guest]

Hi
I have absolutely no knowledge in this area so i would appreciate any help i can get.
A good friend of mine has jusrt rung me. Her daughter worked for a solicitor in Manchester and after a period of unpleasantness at work decided to resign( this may be constructive dissmissal but that is another problem).

The thing is that he has continually delayed paying her her holiday entitlement for the year, he has now sent a check for the full amount but neglected to sign it.
I think that a claim under the small claims would be an idea but as i say i am not really up on employment law so i may be missing something.

Any advise welcome

Peter

[charitynjw]

Re: Holiday Pay from Employer

Hi Mr P,

An employer cannot withold accrued holiday pay.
This is covered by the Working Time Directive.
The normal route for action is via an Employment Tribunal.
Some further info - http://www.freelanceadvisor.co.uk/go...bank-holidays/

How long was she employed there?
Also, insurance policies (ie home contents, motor etc) often cover employment problems.

[Guest]

Re: Holiday Pay from Employer

Thancs C

She had been there a couple of years and there had been some problems with the boss, it is a solicitors so I want to make sure i have everyting right.
She has been left just over a month and has been continually fobed off when requesting her emntitlement.
There may be other issues regarding the reason she left, but the boss eventually sent her a cheque and then "forgot" to sign it.
I want to write a letter to the firm for her in order initially, to get her money, but am not sure how to approach it.
I think perhaps i am over complicating maters and should just send a straight forward letter before action for the money she is owed what do you think?

Peter

Peter

[charitynjw]

Re: Holiday Pay from Employer

Hi again,

I suppose they could say it was just an oversight, so it's probably best to send a 'letter before action' as per CPR Pre-action Protocol.
For good measure, re the cheque, I would also threaten a complaint to the SRA unless the situation was sorted PDQ.
Re other possible issues, has a grievance procedure been pursued?
This can be done concurrently with an ET Claim (don't forget the 3 month cut-off for 'unfair/constructive dismissal')
ACAS will then automatically become involved.

[Guest]

Re: Holiday Pay from Employer

Hi again,

I suppose they could say it was just an oversight, so it's probably best to send a 'letter before action' as per CPR Pre-action Protocol.
For good measure, re the cheque, I would also threaten a complaint to the SRA unless the situation was sorted PDQ.
Re other possible issues, has a grievance procedure been pursued?
This can be done concurrently with an ET Claim (don't forget the 3 month cut-off for 'unfair/constructive dismissal')
ACAS will then automatically become involved.

Hi thanks C

Havnt all the details regarding the grievence or even if a complaint was oficially raised, i will see her tonight.
I thought about the SRA, behaviour unbecoming and all that, i am sure issuing a cheque without signing it would breach some aspect of the solicitors code.

"ACAS will automatically become involved"?

Peter

[charitynjw]

Re: Holiday Pay from Employer

If you submit an ET1 claim to the Employment Tribunal, it is automatically copied to ACAS for mediation.
However, this is a voluntary procedure - you don't have to accept their view (it is not arbitration)

[enaid]

Re: Holiday Pay from Employer

Just wondered if she got paid via the bank could they not send the money owed through her bank ?
It seems strange they have sent a cheque as it should go through PAYE for tax purposes and be included on her P45.

[Guest]

Re: Holiday Pay from Employer

Just wondered if she got paid via the bank could they not send the money owed through her bank ?
It seems strange they have sent a cheque as it should go through PAYE for tax purposes and be included on her P45.

Hi

Yes good point, i got the story from my friend, her irate mother this morning, i will be getting the details from the horses mouth later.

Thanks for the info i feel a bit more confident in talking to her about the matter now, i will get back when i have more detail.

Peter

[miliitant]

Re: Holiday Pay from Employer

evening peter

this is covered under section 13 of the employment rights act, unlawful deduction of wages

the normal route would be to lodge an ET1 claim but remember

it is three months less one day from employment termination date to put in the claim

a claim can be put in at any time and also withdrawn

i would give them a 14 day letter before action and put in this claim if this was me

[Guest]

Re: Holiday Pay from Employer

Hi M
Many thanks for the info, completely out of my depth here do you mean a claim through the ET or a county court claim for the money owed.

Peter

[labman]

Re: Holiday Pay from Employer

Hi Peter,

I'm not far ahead of you here, but there's a few things I have picked up over time, apologies if it has already been mentioned. Holiday pay is dependant on:

Length of Service

Age

Number of Hours worked

This is a good link:

Calculating holiday entitlement : Directgov - Employment

Also of significance I would imagine, if there is an intention to send a LBA with a view to serving a N1 in the small claims court, the court form will want an amount of claim on it. If this is in dispute, or unknown, it may be best to get a good idea of this first before sending the LBA. 14 days is not a long time if you run into any difficulties, so I would have thought best sorted first.

[charitynjw]

Re: Holiday Pay from Employer

I think that, as regards the holiday pay issue, the Employment Tribunals have jurisdiction.
http://www.legislation.gov.uk/uksi/1...lation/30/made Reg 30(1)(b)

The unsigned cheque could be evidence of admitting the witholding of pay.

However, because it was unsigned, I don't think the 'cheque rule' applies because it wouldn't be considered to be a bill of exchange - & a pound to a penny Mr Sol knows it!

[labman]

Re: Holiday Pay from Employer

How did it go Peter?

[Guest]

Re: Holiday Pay from Employer

Hi
Tip of the iceberg Labman, bit tricky.

May have to start a new thread.

Peter

[bluebottle]

Re: Holiday Pay from Employer

Have a word with H.M. Revenue & Customs. I am sure they would be very interested to know your former employer is not complying with their legal obligation to pay you money you are owed by them as a result of your employment with them. I am sure your former employer would not want HMRC to pay them a visit and go through their VAT, PAYE and other financial records. Sometimes, you have to be just a little bit sneaky to turn things around, but, in this case, it is justified as your former employer is in breach of their legal obligations. Additionally, your former employer is committing an offence by offering an invalid cheque in order to avoid or delay payment of your accrued holiday pay. The applicable legislation is Section 2(1)(b), Theft Act 1978 (Inducing A Creditor to Wait for Payment). This carries a maximum penalty, on conviction, of up to five years' imprisonment, which means it is an indictable offence and the police can arrest your former employer without a warrant. Now, that would be something to see a solicitor being taken in custody.