deduction of overpaid holidays

[lces]

i have told my employer i wish to give my notice, however i work termtimes, i am paid for the days i work during the school terms and recieved 20 days holiday pay during the summer, half terms and easter breaks etc are unpaid. the working year runs jan - dec. i began working for my employer 20th jan 3days a week up until april and returned after easter to work 4 days a week. my employer says i owe 2 weeks holiday pay and therefore i'm to work the last 2 weeks of my employment unpaid. however i have never signed a contract or have written agreement or knowledge that any over payment of holidays will be deducted from my final pay. does anyone know where i stand with this??

[judgemental24]

Re: deduction of overpaid holidays

Have you used up your paid holiday entitlement or any days left outstanding?

It is normal practice now to record holiday entitlement in hours worked, not days when allocating entitlement

[matt3942]

Re: deduction of overpaid holidays

Hi @Ices

I find the annual leave system within schools terribly confusing; however, I assume as you are leaving before the end of the calendar year you have not accrued the full number of annual leave days you were required to take during the summer holiday.

The simple answer is your employer cannot deduct overpaid holidays from your final salary unless there is a written agreement in place, e.g. an explicit term in your contract or written statement.

As such they also cannot force you to work unpaid to make up the difference.

If there is no agreement in place, and if your employer does not pay you for your final two weeks' employment, that will constitute an unlawful deduction from your wage.

- Matt

[judgemental24]

Re: deduction of overpaid holidays

This is a difficult one and i for one have not a clue on school term time working

You need to check on your wage slip, normally someware on there will be a caveat that states any over payment of wages will be recovered.

There does not need to be express terms in your contract to recover the over payment as it is already covered under statute.

That is covered under section 14 (1)(a) Employment Rights Act 1996

http://www.legislation.gov.uk/ukpga/1996/18/section/14

If you have used up your paid holiday entitlement in the current year and wish to leave within that holiday cycle then yes, they can deduct any balance outanding from your final salary.

They also cannot force you to do unpaid work either

[matt3942]

Re: deduction of overpaid holidays

My understanding has always been that an employer does not have a statutory right to deduct an overpayment made in respect of holidays not accrued, and there has to be a specific provision in the employee's terms and conditions of employment for the deduction to be made.

Perhaps someone else will come along to clarify.

[judgemental24]

Re: deduction of overpaid holidays

An employers terms and conditions in a contract of employment cannot take precedent over a statutory right

Just like an employer has to give 28 days a year annual holiday as a statutory right

Having done six tribunals myself under section 13, i should know:tinysmile_twink_t2:

[matt3942]

Re: deduction of overpaid holidays

I don't agree an employer has a statutory right to deduct an overpayment in respect of holidays taken that have not been accrued.

This is the guidance from ACAS:

What happens when a worker has taken more leave than their entitlement on termination of employment?
Regulation 14 (4) of the Working Time Regulations 1998 states that an employer and worker can draw up a ‘relevant agreement’ (for example, in the contract of employment) to provide that a worker will compensate the employer, whether by payment, undertaking additional work or otherwise if leave already taken is in excess of entitlement when employment ends.

There should be a ‘relevant agreement’ in place; if not, and a deduction of overpayment is made by the employer from the worker’s final wage payment, the worker may have the right to submit a claim to an employment tribunal under Section 13 of the Employment Rights Act 1996 – the right not to suffer unauthorised deductions.

- Matt

[judgemental24]

Re: deduction of overpaid holidays

As i said

Section 14 ERA is an absolute right under statute

There is nothing stopping an employer drawing up any repayment plan, they just do not have to. They can simply take any balance outstanding from your final salary entitlement

If they agree a repayment plan and you "sod off" after getting your final wage they will simply issue a claim in the private court for redress

[matt3942]

Re: deduction of overpaid holidays

I'm sorry but that is not what you said - you referred to S14 of the ERA, which does not give an employer a statutory right to deduct an overpayment (in respect of holidays taken but not accrued) from an employee's final wage.

S14 of the WTR states this needs to be agreed beforehand, e.g. in the contract of employment, which I said, and which you disagreed with.

If there is no agreement in place and if the employer deducts the overpayment from the final wage, this is likely to be an unlawful deduction.

- Matt

[judgemental24]

Re: deduction of overpaid holidays

(1)

Section 13 does not apply to a deduction from a worker’s wages made by his employer where the purpose of the deduction is the reimbursement of the employer in respect of—

(a)an overpayment of wages, or

(b)an overpayment in respect of expenses incurred by the worker in carrying out his employment,



That is section 14 employment Rights Act, The Working Time Regulations have absolutely nothing to do with this

if the employee is owed any annual leave entitlement on termination of employment then the employer has to pay or that will be contrary to section 13 ERA

You do not instigate litigation under delegated regulations, it is always the parent act

[matt3942]

Re: deduction of overpaid holidays

So ACAS is wrong?

[judgemental24]

Re: deduction of overpaid holidays

ACAS would not know their ar^e from their Elbow

And i am being polite through 20 years of dealing with them for my members

ACAS do not give legal advice, their only remit is to achieve settlement, even if negative to the claimant/employee

[judgemental24]

Re: deduction of overpaid holidays

Contrary to popular belief ACAS conciliators are not under any statutory duty to give advice or evaluate the merits of any claim made. Section 18 Employment Tribunals Act states that they only have a duty to promote a settlement.

[matt3942]

Re: deduction of overpaid holidays

That's all very well but I happen to agree with their advice re: S14 of the WTR. I do not agree with your interpretation of S14 of the ERA; however, as we are unlikely to reach an accord we shall agree to disagree and I shall stop contributing to this post.

- Matt

[judgemental24]

Re: deduction of overpaid holidays

Agreed

We agree to disagree in the spirit of healthy debate