Holiday Pay claim through Sheriff / County Court; is it still possible?

[ruf]

Hi,

A family member worked for an employer for 6 months (finished in September 2014) and never received payment for 7 holiday days they took off in July 2014 and on leaving, did not receive the outstanding accrued holiday pay. The employer refuses to pay holiday pay. Is it still possible to make a claim via the sheriff / county court system or has this route been completely shut down by the Deduction from Wages (Limitation) Regulations 2014 that came in on 8 January 2015? I have spoken to ACAS who say as far as they are aware, it is still possible up until 1 July 2015 but having trawled through pages of related info and opinions of employment law blogs, it seems to be open to interpretation as to whether the right to make a claim in court for holiday pay as an unlawful deduction of wages has ceased to be an option as of 8 January 2015 or if it is still possible up until 1 July 2015. Could anyone help with a definitive answer please? Thanks for your help.

[stevemLS]

Re: Holiday Pay claim through Sheriff / County Court; is it still possible?

It's in Regulation 4, transitional provisions, providing the complaint is lodged before 1st July 2015 the new Limitation Period does not apply http://www.legislation.gov.uk/uksi/2...0143322_en.pdf

Regulation 3 is making clear that the right to holiday pay is a distinct statutory right rather than being reliant on your contract, the Explanatory Note is (unusually) quite helpful.

[ruf]

Re: Holiday Pay claim through Sheriff / County Court; is it still possible?

Thanks for your reply Steve.

From that legislation, would it be right in thinking that as of 8 January 2015, holiday pay is a statutory right and not contractual and therefore a claim cannot be made through the small claims court system? That is my understanding of it, effectively meaning that my family member cannot recover their unpaid holiday pay.

[stevemLS]

Re: Holiday Pay claim through Sheriff / County Court; is it still possible?

Others (@teaboy2 ?) need to help me out here.

My logic says that the right to the pay was contractual up until the point they became statutory.

Again, the explanatory note confirms that Reg 2 is intended particularly to apply to holiday pay (and imposes a new limitation period).

However, Reg 4, transitional provision, provides that Reg 2 does not apply to claims lodged prior to 1st July - at the tribunal.

In combination, I think OP can rely on contractual rights for a cause of action before the Regs came into force.

Whether it is worth it for 7 days pay is another question.

[ruf]

Re: Holiday Pay claim through Sheriff / County Court; is it still possible?

Thanks for your reply. I agree with your logic that the right to the pay was contractual up until 8 January 2015 and therefore a claim can be made. It is on reading the opinions of employment law blogs etc, that the making of holiday pay a statutory right on 8 January 2015 was to prevent employees making backdated claims via the county court system; these opinions make me uncertain. No holiday pay was ever received, so there was 7 days unpaid while off and then the remaining accrued holiday that was not paid on leaving. If it is clear that there is a strong case, it will be worth it but if it is uncertain due to this legislation, it may not be worth the risk.

[stevemLS]

Re: Holiday Pay claim through Sheriff / County Court; is it still possible?

I am no employment law specialist, but I do statutory interpretation. It seems to me that the main purpose was to limit claims to a maximum of two years rather than six.

But you are better read in the law "comics" than I on this issue.

[ruf]

Re: Holiday Pay claim through Sheriff / County Court; is it still possible?

I agree, I believe that was the main purpose of the legislation. The "comics" can be good for info but at the end of the day, they are just someone's opinion; even qualified in the field, they may or may not be right. I think as the 2 year limit does not affect this case, it may be a case of sitting back and waiting until things become clearer. Thanks again for your help.

[ostell]

Re: Holiday Pay claim through Sheriff / County Court; is it still possible?

Write now, politely, asking for the holiday pay. No response after a reasonable time (21days?) then write with a letter before action. No response then start the small claims court action.

[ruf]

Re: Holiday Pay claim through Sheriff / County Court; is it still possible?

Thanks for your reply. They have emailed the employer twice so far, both giving 14 days to pay. No response was received. It is now over a month in total and they were getting ready to post a letter before action, when it became unclear whether this change in the law stopped it being possible to claim via the county court.

[teaboy2]

Re: Holiday Pay claim through Sheriff / County Court; is it still possible?

i agree with [MENTION=48758]stevemLS[/MENTION] contracts signed prior to the regulations coming into force still include holiday pay as a contractual term (there's nothing stating the changes effect contracts entered in to prior to the changes (regarding it as no longer a contractual term) coming in to force, and the changes would be questionable if they were to effect contracts made/entered into prior to the changes coming in to force), however you only have two years to claim at tribunal, though you can still claim at small claims court for breach of contract, as the 2 year period only applies to tribunals (The two year limit applies regardless as to when the contract was sign).

To be honest the changes are a bit up in the sir if you ask me, as a breach of a statutory right amounts to a breach of contract anyway! As the employer has an obligation to honor your statutory rights (duty of care - Which is a contractual duty)

Maybe we need a thread to discuss the changes in legislation and put our heads together to form clearer picture of the changes and their effects [MENTION=48758]stevemLS[/MENTION]?

Though i agree with you, the OP isn't effect by the changes other than the 2 year limit for taking it to tribunal from date he/she had the deductions made from his/her pay (date would have been paid if it hadn't been deducted)

[ruf]

Re: Holiday Pay claim through Sheriff / County Court; is it still possible?

Thanks for your reply teaboy2, it is very much appreciated and thanks again to all of you for your help and advice. Should the letter before action not be effective, I will post an update on how the court claim goes. Thanks again.

[ruf]

Re: Holiday Pay claim through Sheriff / County Court; is it still possible?

Hi again. Just a quick update on this case as it stands now. All correspondence with the employer failed and a small claim was submitted with regards the outstanding holiday pay. The court has advised that the employer is disputing the claim and going to court, the hearing is next week.

While things are clear as to what points to make with regards the failure to pay holidays taken and unused holiday, I was wondering if anyone could offer some further advice as to what points to make if the judge does take the stance that the claim cannot be made because of the change in the law? The points made above are excellent and will be put forward if need be but I thought it was worth asking if anyone had further advice just in case that scenario becomes a reality. Thanks again for your time and help.