Holiday Pay - Case Law

[User58]

I am in the process of preparing my statement for an imminent tribunal hearing and wondered if there was any relevant case law I can use in regards to holiday pay.

I resigned from the position and did not receive any accrued holiday pay in my final salary.

As a term time employee my time off (holidays) were restricted to the statutory school holiday periods but I was never paid for any of these enforced closure periods during my employment of 2 years. I never received a contract or terms of employment outlining my entitlement but I do understand that I should have been paid for the statutory minimum of 5.6 weeks.

Any advice or case law examples will be gratefully received.

[teaboy2]

Re: Holiday Pay - Case Law

Right i have had look for you and your only entitled to the minimum, unless you can prove otherwise (request a copy of your employment contract), if they fail to supply you a copy then you also have a claim for a breach of section 1 of the employment rights act 1996.

Regarding holiday entitlement, you merely have to point the tribunal to section 13 working time regulations 1998 - reference you annual leave entitlement (unless your employment contract says your entitled to more than 28 days - in which case point the tribunal to the holiday entitlement term in the contract)

Regarding compensation for holiday entitlement - Point the tribunal to section 14 of the working time regulations 1998, which basically states you must be paid for any accrued but not yet taken holiday entitlement. Also you can claim back any unpaid holiday entitlement for last two year period, if the school hasn't paid you for any holiday entitlement, even if was only 1 days holiday the neglected to pay you.

[User58]

Re: Holiday Pay - Case Law

Thanks for the reply Teaboy2, it has reassured me.
I panicked yesterday when ACAS called and stated that the respondents are incurring costs and they can put in a claim for costs against me. Following their call I actually felt they sided with the respondents and even though I know I have a case they've left me feeling I need to throw anything I can regarding case law or examples in my statement just to get the point over.


I never received a Contract of Employment and had asked for one on and off over the last couple of years which I did mention on claim.
The respondent stated in their response that they DID provide one but "can't find it....." they then prattle on about implied terms! I know they won't be able to produce a genuine contract for the hearing as it never existed but that is likely to be their word against mine.

[Debt Camel]

Re: Holiday Pay - Case Law

that is likely to be their word against mine.

Were there any co-workers who were likely to have been employed on similar terms?

[User58]

Re: Holiday Pay - Case Law

[MENTION=48934]Debt Camel[/MENTION]. When I asked for a contract it did come to light that others didn't seem to have them either but no one seemed to be to concerned by it at the time. Regarding the holidays we were originally told that we were't entitled to any paid holiday as we were 'term time' employees, and it seems to be accepted. It wasn't until I left and asked for help to work out my final salary that I realized I would be entitled to the accrued holiday.

[Debt Camel]

Re: Holiday Pay - Case Law

If you are still in touch with any of them, statements from them that they were told they wouldn't receive holiday pay and didn't have a contract would make it less "your word against theirs"

[teaboy2]

Re: Holiday Pay - Case Law

Thanks for the reply Teaboy2, it has reassured me.
I panicked yesterday when ACAS called and stated that the respondents are incurring costs and they can put in a claim for costs against me. Following their call I actually felt they sided with the respondents and even though I know I have a case they've left me feeling I need to throw anything I can regarding case law or examples in my statement just to get the point over.

Its highly unlikely a tribunal will award costs against you, its only in cases when the claim is vexatious or without any merit when they may award costs against a claimant. Usually at tribunal both sides pay their own costs, or if its very expensive legal case the loser pays all costs of both sides, but not always. Your claim has solid grounds for success i.e. statutory entitlement to 28 days holiday.

Have a look here for more details as to entitlements - https://www.atl.org.uk/help-and-advi...king-hours.asp - Also look under work load. Also contacting ATL for advice might be worth a try. I know they are a union but they may give some free advice to you as well even if your not a member!


I never received a Contract of Employment and had asked for one on and off over the last couple of years which I did mention on claim.
The respondent stated in their response that they DID provide one but "can't find it....." they then prattle on about implied terms! I know they won't be able to produce a genuine contract for the hearing as it never existed but that is likely to be their word against mine.

Implied terms have nothing to do with this - Holiday entitlement is an expressed term in employment contracts due to being a required right by statutory law, therefore it can not be less than the minimum allowed of 28 days paid holiday per year. If they are saying you were not entitled to any paid holiday per year as an implied contractual term, then they are going to get two slugs full from the tribunal chairs shotgun right in their faces! The fact they say they did give you a contract but now can't find it is laughable as that also puts them in breach of data protection act 1998, as clearly the contract would contain your personal data protected under said act, so if they had lost your magically signed and disappearing contract, along with everyone elses, then you can sue them for putting you at risk of having your ID stolen and/or financial fraud! But as you say, you never had a contract so the tribunal are about as likely to believe there story that you did, but can not find it, about as much as i am as likely to believe in fairies - And there's no chance of me believing in fairies... unless someone spikes my drinks!

Another point about cost - Its all huff and puff, as virtually all employers say they are going to go for costs. Its a mere scare tactic used in the hope you will back down and cease your claim, but in reality its about as harmful as the cool breeze you feel on your skin on a nice hot summers day!

@Debt Camel. When I asked for a contract it did come to light that others didn't seem to have them either but no one seemed to be to concerned by it at the time. Regarding the holidays we were originally told that we were't entitled to any paid holiday as we were 'term time' employees, and it seems to be accepted. It wasn't until I left and asked for help to work out my final salary that I realized I would be entitled to the accrued holiday.

its irrelevant if you were term time or not as your holidays are occurred on a per days worked, so if you generally worked 5 days a week, its 5*5.6 = 28 days paid at your normal hourly/daily rate/salary - school holidays would simply be deemed unpaid leave! Besides your on a salary so your paid for the whole year regardless or school holidays, but just because your on a salary, it doesn't mean your not entitled to paid 28 days holiday, because you are, just like any other employee is, whether or hourly rate or annual salary!

No i haven't read through this. But its from the department of education (someone else you can contact for advice) Its called School Teachers Pay and Conditions Document 2014 - https://www.gov.uk/government/public...onditions-2014 - There ones for earlier years too 2013,2012 etc as i believe they are updated at the end of each year!

[Amethyst]

Re: Holiday Pay - Case Law

Have you actually been through what the pay / salary arrangements were ? and worked out the actual entitlement ? (I'd presume this has been gone through with ACAS ?) - working full time (35 hrs) for 39 weeks a year would be around 21 days paid holiday entitlement as far as I am aware TB.

[teaboy2]

Re: Holiday Pay - Case Law

Thats the problem, with no contract sitpulating specific terms, we have no way of knowing is her terms of pay cover the whole 52 week period including pay for school holidays like a normal salaried workers, or not. I expect it does as in most teachers cases. You also then have all the extra hours of work they put in during term time, which are reflected in collective agreements with unions, therefore hence why teachers get 28 days holiday too.

Extraact from STP&CD 2009

In addition to the hours a teacher is required to be available forwork under sub-paragraph 4 or sub-paragraph 6, as the case maybe, a teacher must work such reasonable additional hours as maybe necessary to enable the effective discharge of the teacher’sprofessional duties, including, in particular, those under paragraphs72.1.1 and 72.1.3.74.14 The employer must not determine how many of the additional hours

referred to in sub-paragraph 13 must be worked or when these hours must be worked.

Therefore you have all those additional hours worked to comply with their professional duties i.e. marking course work, homework etc outside of normal school hours!

[Amethyst]

Re: Holiday Pay - Case Law

No, but the OP will know how she was paid. eg. the same every month throughout the year ( salaried) or paid in term time for work done and not in the school holidays etc. ( I don't think the OP has actually said they were a teacher in a school have they ? - there's billions of other jobs that are term time only )

[User58]

Re: Holiday Pay - Case Law

@ Teaboy2 Phew...... I was hoping you'd say the threat of costs is all "huff and puff".

Thank you for the opinions and points raised, that is an interesting point about the data protection and something I have taken note of should I need it on the day
[MENTION=6]Amethyst[/MENTION]. Following previous advice from a friend I used the .gov holiday calculator to work out my accrued holiday entitlement but then went on to my local authorities website that supports local schools for more information. They state that the accrued holiday year 'usually' works along side the academic year Sept - Aug, they also had a useful holiday calculator which I used and it gave me the same figures as the government calculator.

I did run through the figures and points with Acas prior to lodging my claim and they didn't disagree with anything I said but the respondents just 'poo-hoo'ed' my claim which Acas said was quite normal.

Yesterdays call from Acas is the continued conciliation prior to my hearing which is scheduled in September and presumable a follow up from their conversation with the respondents.
She did say that she couldn't make sense of the ET3 as it was poorly written and scribbled in places which also makes me wonder how she can issue a warning of costs if she can't make sense of the defense!

Acas asked me to think about the costs over the weekend and let her know on Monday if I want to withdraw my claim or to let her know if I received any correspondence from the respondents regarding costs.

[User58]

Re: Holiday Pay - Case Law

Just to clarify, I am a 'pre-school teacher' (Early Years Foundation Stage) and yes it did involve out of hours preparation time (arts and crafts mainly).
We are all paid for the hours we work each month, nothing during the half term, bank holidays or other school closures.

[Amethyst]

Re: Holiday Pay - Case Law

That you are paid for hours worked rather than salaried does make a difference to the holiday entitlement calculations - but sounds like you have that cracked already with ACAS agreeing with your figures ( out of interest what did you calculate your entitlement to be ? Is is 35 hrs over 39 weeks ( basically ?) so around 21 days paid holiday entitlement ?)

[User58]

Re: Holiday Pay - Case Law

Yes, the rate was calculated from the weeks worked each year (39 term weeks) but the accrued holiday for this year is calculated as having accrued from September 2014 to April 2015 as I left at the start of the Easter break.
Another interesting point is that they originally said to Acas that their holiday year runs from April hence I hadn't accrued any holiday for this current year yet but ignored the fact that they hadn't paid any holiday pay during the holidays in the previous years. We weren't allowed to book time off during term times, which is fair enough but there were plenty of enforced closures where they could have paid us. Again the holiday restrictions were verbal but from what I understand this is pretty normal in schools.

I am now working in another school and have been issued with an Employment Contract so I'm trying to apply the same logic as both schools are governed by the same local authority.

[teaboy2]

Re: Holiday Pay - Case Law

Yes, the rate was calculated from the weeks worked each year (39 term weeks) but the accrued holiday for this year is calculated as having accrued from September 2014 to April 2015 as I left at the start of the Easter break.
Another interesting point is that they originally said to Acas that their holiday year runs from April hence I hadn't accrued any holiday for this current year yet but ignored the fact that they hadn't paid any holiday pay during the holidays in the previous years. We weren't allowed to book time off during term times, which is fair enough but there were plenty of enforced closures where they could have paid us. Again the holiday restrictions were verbal but from what I understand this is pretty normal in schools.

I am now working in another school and have been issued with an Employment Contract so I'm trying to apply the same logic as both schools are governed by the same local authority.

Wow the arrogance - Clearly they making it up as they go along and conveniently state holiday year starts in April whilst also conveniently forgetting about not paying holiday entitlement the previous years, though probably due to their belief you were entitled to holiday entitlement.

How on earth they can even think for 1 second they are going to win is beyond me lol