Holiday pay

[Worried employer]

Hi
I had an employee who wanted to learn a trade so we set them up with an apprenticeship
As they didn't want to go onto the apprentice wage we agreed that they would stay on there current wage but forego there holiday
Apprenticeship started in sept 14 and in July 15 they decided that they no longer wanted to carry on with the course so we said ok and he carried on working for us
From July to Dec he recieved holiday pay
In Jan he handed in his notice as he had got another job
Last week I recieved a form from job seekers as he is now claiming this
Today I receive a letter from him asking for his holiday pay from sept 14 till Jan 16 which totals 32 days
Now I have worked out what he would have recieved on his apprentice wage including holiday and what he did recieve
Which works out that he would actually owe us money
Now we don't want this money back as we are quite pleased he has left due to his wife writing nasty stuff on Facebook about us back in the summer
But my question is are we in the wrong we were trying to help them out
If he took us to a tribunal which I don't think they will as they have no money
Would we have to pay the 32 days at his actual earnings or could we reduce to the apprentice wage
Thanks for reading this

[mariefab]

Re: Holiday pay

If you're asking whether it was wrong to withhold paid holiday for 10 months for any reason, the answer is Yes.
If they have no money he won't need to pay Tribunal fees.

[Worried employer]

Re: Holiday pay

Hi
Yes I know this now
But we was trying to help them out by keeping his money the same so he didn't go onto an apprentice wage
Could I back date everything into an apprentice wage ?

[mariefab]

Re: Holiday pay

No, you can't.

[Amethyst]

Re: Holiday pay

The sad thing is you won't try and help anyone else out again in the future

[Worried employer]

Re: Holiday pay

Very true we will not help anyone again and will never employ a friend again,
But on a good note my solicitor phoned me back and said if it goes to court we can argue our case and you never know what the outcome will be 😀

[Amethyst]

Re: Holiday pay

Sadly though, An employer cannot include an amount for holiday pay in the hourly rate, it's known as rolled up holiday pay and there was a case in the EU a few years back about it. It's contrary to the working time directive I believe. In a civil case if you had it clearly written in the employment terms or made a contract with the employee to pay his holiday pay in his hours you might have an argument, but it's quite a slim might. There was another case showed that if it was a genuine addition to the hourly rate it could be done, but as you were moving him to an apprenticeship and not downgrading his pay accordingly I doubt very much you'd be able to show it was an addition (ie paying the holiday pay on top of normal pay) rather than a deduction. A tribunal is likely to find in his favour IMO. It's okay for a solicitor lol, he won't have to pay the additional costs on his 'you never know' opinion. I think it's heavily weighted against you.

What does it come to ? £2k overall ?

[Openlaw15]

Re: Holiday pay

Very true we will not help anyone again and will never employ a friend again,
But on a good note my solicitor phoned me back and said if it goes to court we can argue our case and you never know what the outcome will be 

There's an old saying, never throw the baby out with the bathwater. For every bad apple there are lots of good eggs, so to speak.

[teaboy2]

Re: Holiday pay

Hold on guys there is a chance that the OP would have a solid defence against such a claim. But before i go into details i need to know from the OP if they had a written agreement reference the apprenticeship and the holiday entitlement and did the OP sign it or give agreement in writing?

[Openlaw15]

Re: Holiday pay

Hold on guys there is a chance that the OP would have a solid defence against such a claim. But before i go into details i need to know from the OP if they had a written agreement reference the apprenticeship and the holiday entitlement and did the OP sign it or give agreement in writing?

Op says 'the employee' requested an apprenticeship....so it is alludes there was a contract initially, then the second event was another offer and acceptance, ie for the apprenticeship. The terms change too substantively be a variation of terms at this point, that it would likely be a second contract. It would seem the main contract would be binding and if the employee was entitled to holiday pay on the original contract then they should be when the situation reverted back to the original contract.

[teaboy2]

Re: Holiday pay

Op says 'the employee' requested an apprenticeship....so it is alludes there was a contract initially, then the second event was another offer and acceptance, ie for the apprenticeship. The terms change too substantively be a variation of terms at this point, that it would likely be a second contract. It would seem the main contract would be binding and if the employee was entitled to holiday pay on the original contract then they should be when the situation reverted back to the original contract.

Not necessary.

It be helpful if the OP can post up copies of the contracts minus personal and company details though!

[charitynjw]

Re: Holiday pay

According to post #1, it would appear that the employer pays 32 days holiday per month. (The employee received his holiday entitlement up to Dec, then left in Jan.)
If that is so, can I have a job, please?!
(I'm sure I must be reading it wrongly, lol!)

[Openlaw15]

Re: Holiday pay

Not necessary.

It be helpful if the OP can post up copies of the contracts minus personal and company details though!

the tribunals can imply terms in the contract too

[Worried employer]

Re: Holiday pay

To answer a few of the questions
It's not written in the contract it was all on text message, but we all signed a contract for the apprenticeship which clearly states holiday entitlement
But he never actually asked for holiday in all that time he asked for days off but never requested holiday the first time he requested holiday was in Dec 15 which he was paid,
So could I argue that he. Ever requested Hoilday as it says in the contract that Hoilday has to be used within the year as it will not carried over or paid in lieu

[Worried employer]

Re: Holiday pay

The total after working out what he was actually entitled to is £1123 and I know I should properly pay this but after all the abuse I have had off his wife slagging us off on Facebook and to anyone that will listen I really don't won't to pay it lol
It's funny how people forget how much you have actually done for them when it comes to money

- - - Updated - - -

He didn't actually request an apprentship it was his wife who wanted him to learn a trade and asked me to ask my husband who wasn't very keen at first but I persuaded him to give him a chance at learning a trade