Holiday Pay - Case Law

[User58]

Re: Holiday Pay - Case Law

"How on earth they can even think for 1 second they are going to win is beyond me lol[/QUOTE]

Exactly what I thought during my stronger moments and until the call from Acas.

[Amethyst]

Re: Holiday Pay - Case Law

Shouldn't you get a copy of the Et3 ? ( I don't know much about tribunals but presumably you are meant to see the defence submitted against your claim )

[User58]

Re: Holiday Pay - Case Law

Yes I received a copy of the ET3 last week and I agree with ACAS, it's difficult to make sense of the scribble. The boxes are all ticked agreeing with my submission and then in the box for their written defense it's stated that "she was paid via our payrolls software based on the hours she worked......."
The it goes on about the contract "....User58 received a contract on commencement of her employment we can not find a copy. However even under implied terms she would not be entitled to accrued holiday from previous years, this is sort of additional employment benefit would have placed an undue burden on us. To clarify User58 never requested nor was refused any holiday during these times "

That seems to be their entire defense!

[User58]

Re: Holiday Pay - Case Law

My ET hearing is 2 weeks today. My boss (owner) is saying that she won't be attending on the day but her husband will be acting as her representative. He has nothing to do with the business and hasn't been present during the relevant conversations (ie. when told I wasn't entitled to any holiday pay) nor is he legally trained in any way.

Not sure if I have anything to worry about. as I've prepared my docs and statement ready to send by email (papers say 7 days prior to the hearing) and I have quoted conversations within my statement and also provided relevant messages (text & mail) between my boss and I.

What will happen if my boss doesn't turn up on the day?
Will the judge accept him giving a version of events even though he wasn't there?

Thanks in advance for any help and advise you can offer.

[teaboy2]

Re: Holiday Pay - Case Law

My ET hearing is 2 weeks today. My boss (owner) is saying that she won't be attending on the day but her husband will be acting as her representative. He has nothing to do with the business and hasn't been present during the relevant conversations (ie. when told I wasn't entitled to any holiday pay) nor is he legally trained in any way.

Not sure if I have anything to worry about. as I've prepared my docs and statement ready to send by email (papers say 7 days prior to the hearing) and I have quoted conversations within my statement and also provided relevant messages (text & mail) between my boss and I.

What will happen if my boss doesn't turn up on the day?
Will the judge accept him giving a version of events even though he wasn't there?

Thanks in advance for any help and advise you can offer.

What was her reason given for not attending. Has she informed the tribunal of this?

Like yourself she is entitled to appoint someone to represent her (Lay representative) at employment tribunal . Though she must notify the tribunal of this i believe!

[mystery1]

Re: Holiday Pay - Case Law

Can a lay rep help when the "client" is not present ?

Certainly not in a court case but perhaps ET rules are different.

M1

[teaboy2]

Re: Holiday Pay - Case Law

I think they can at ET as its not as strict as small claims court!

Though certainly worth checking, especially since the employer can be called to give evidence and therefore ordered to attend!

[User58]

Re: Holiday Pay - Case Law

Thanks for the replies.
I don't know for sure if she isn't going to be there, it's just what I've been told by a ex work friend but I do know for sure that she is booked in at a work related event on the same day so she won't be in both places at the same time.

I'm presuming she'll be doing a statement which I am likely to want to ask her directly about which is why I asked the question. I believe I have enough evidence to prove my side of events (payslips with no holiday pay & messages saying 'I'm not paying') so that side of things are covered.

Again, assumption on my part.... but if no one turns up to sit in the Respondents seat I'm guessing the judge will look through my evidence and make his ruling?

[teaboy2]

Re: Holiday Pay - Case Law

Or he will simply strike out her defence and rule in your favour. Though the chair could order her to attend possibly at a later date!

I doubt they would be happy to hear that she found attending an event more important to that of attending an employment tribunal!

[User58]

Re: Holiday Pay - Case Law

My claim is only for the unpaid holiday so we're not talking about 'mega bucks' here so IMO it would be such a waste of time to reschedule the hearing but I appreciate it would be in view of her contempt rather than anything personal against me.

I shall wait to see if I get a copy of her statement or any other paperwork to form a defense which should arrive in the next 7 days. Who knows she could just write "yeah I'm bad ignoring the ERA, I didn't think she deserved to be paid holidays"! :tinysmile_grin_t:

[teaboy2]

Re: Holiday Pay - Case Law

Its more principle than it is about mega bucks. She owes you for unpaid holidays and your entitled to it hence why your taking the action your taking, as your not going to let her get away with it out of principle more than anything else.

Yes the courts will likely see it as a reflection of her contempt and a sign of her arrogance to employment law and working time regulations (which gives you your holiday entitlement and right to unpaid accrued holidays when you leave employment) in general.

Be interesting to see what she puts in her statement etc though!

[User58]

Re: Holiday Pay - Case Law

So I emailed my statement and documents to the respondents after a fashion (the email they provided kicked back my mail saying there was a block on it so I resent it to a couple of other (personal) email address's that I know she has) I have delivery and read receipts from the tribunal so fingers crossed everything is in order from my side.

Today I received a couple of documents from the respondent but no statement.The documents don't seem relevant to me, the company registration document and a couple of ACAS print outs regarding how holiday accrues. The only interesting thing was a PAYE print out stating I had accrued 5 days holiday (unpaid) yet in my bundle I have a message from her stating it was only 3 days and then on the ET3 it states the holiday year started on 1st April so I hadn't accrued any holiday as that was my leaving date. Mmmm Confused!!!

So, moving on I have a couple of questions.
I thought you had to provide a statement of the facts as you see them before the hearing so if she produces one in the next few days leading up to the hearing is it worth me saying anything to the judge about this or will that just annoy him?
Or, if they just turn up with one on the day do I point out that it hadn't been disclosed prior to the day. I really don't want to come across as if I aspire to be Rumpole of the Bailey by objecting to anything I don't like.
Really appreciate your help.

[teaboy2]

Re: Holiday Pay - Case Law

So I emailed my statement and documents to the respondents after a fashion (the email they provided kicked back my mail saying there was a block on it so I resent it to a couple of other (personal) email address's that I know she has) I have delivery and read receipts from the tribunal so fingers crossed everything is in order from my side.

Today I received a couple of documents from the respondent but no statement.The documents don't seem relevant to me, the company registration document and a couple of ACAS print outs regarding how holiday accrues. The only interesting thing was a PAYE print out stating I had accrued 5 days holiday (unpaid) yet in my bundle I have a message from her stating it was only 3 days and then on the ET3 it states the holiday year started on 1st April so I hadn't accrued any holiday as that was my leaving date. Mmmm Confused!!!

So, moving on I have a couple of questions.
I thought you had to provide a statement of the facts as you see them before the hearing so if she produces one in the next few days leading up to the hearing is it worth me saying anything to the judge about this or will that just annoy him?
Or, if they just turn up with one on the day do I point out that it hadn't been disclosed prior to the day. I really don't want to come across as if I aspire to be Rumpole of the Bailey by objecting to anything I don't like.
Really appreciate your help.

Do you have anything that says the holiday year is from 1st April like company hand book or is this first time you have heard this?

Regarding statements of fact, yes point it out to the judge if she produces them late on and close to hearing date and in the case where she turns up with it on the day, then point out to the judge she had failed to disclose her statement of facts, and therefore you have not had chance to review it.

Also mentioned the blocked email, as she clearly blocked you email and therefore blocked you from contacting her on that email. Basically if shes acting unreasonably in anyway point it out to the judge!

[User58]

Re: Holiday Pay - Case Law

Thanks for the reply Teaboy2 and the advise, very helpful and reassuring.

I was never given an employment contract and shy hasn't tried to produce one as she claimed in the ET3 that "they couldn't find it right now"! I don't think they even have a company hand book, not one I or anyone else has seen.

The first time they mentioned April 1st was in the ET3 response claiming that the holiday year started that day and it coincided with my leaving date so I hadn't accrued any holiday for the year. There's no mention of any holiday accrued during the previous year.
Acas website states that if there isn't a formal holiday accrual year then the holiday should accrue from your starting date and future years are worked from that anniversary. I have printed that page and included it in my bundle and also referred to it in my statement.

My email is definitely blocked as I opened another email account and managed to mail everything over which wasn't kicked back. I shall print off the delivery receipts and reports to take with me next week.

[User58]

Re: Holiday Pay - Case Law

Sorry if this is a stupid question but I've been going through the few documents I've received and there's a print out of ERA 96 Chapter 18, Part 1 Employment Particulars. (12 Determination of references)

I'm confused as to how this can relate to my unpaid holiday pay.

Any ideas on the angle here would be great.