Help needed regarding Backdated Holidays after TUPE

[BigBlueBear]

Hi, first time poster and would appreciate some advice, really sorry about it being so long.

I started work for my previous employer in July 2000, when I started with them I was told my Holidays would accrue, except for Bank Holidays, up to the 30^th April 2001. I would then be able to use the Holidays that I had accrued, from the 1^st May 2001, this amounted to 7.5 days, which the company has confirmed, were the holidays I had received from 1^st May 2001. From the first contract I received, my Holidays would be paid as follows.

Qualifying Period
· The qualifying period to run from 1^st May to 30^th April in any year.

Payment
· To be made after 30^th April in any year, except in the case of cessation of employment, when payment will be made with the final wage.

Entitlement
· Up to 1 years’ service within qualifying period – pro rata to 10 days maximum, dependant on number of completed month’s service.
· 1 to 2 years’ service – 10 days
· 2 to 4 years’ service – 15 days
· Over 4 years’ service – 20 days

Bank Holidays
· Usual Bank Holidays. It is often necessary to work on the actual National Bank Holiday. An alternative Holiday will be granted in lieu.
· It is important to note that payment for Bank & Public Holidays can only be made if you have worked both the day before and the day after the holiday itself. If you miss either of those days, you will not be paid for the holiday.

I have now been TUPE’d over to a new company from the 3rd March 2017, along with 16 other employees. During the consultation process we had asked our old employer what would happen to any holidays we would be owed from our first contract, as we were under the impression that we were still receiving our Holidays a year behind, based on the information from our first contract. The company’s Solicitor told us that all employees’ holidays had changed after the Working Time Directive had been introduced, and holidays could no longer be accrued and used the following year, like they did under the old contact and that they would have to be accrued and used in the same year, after the introduction of the WTD.
There are now 7 of us, who believe that we are entitled to a payment for Holidays that are a year behind, by our reckoning it should have been approximately 16.5 days as we finished on the 3^rd March 2017.

Our old employers Solicitors also quoted us this in an email.

The Holidays Act 2003 provided that employees should have 3 weeks holiday per year and this came into force on 1 April 2004 onwards. Therefore from 1 April 2004 onwards they should have 3 weeks holiday per year (no bank holiday entitlement but businesses chose to pay to time and a third, time and a half or double time if worked depending upon what contract was in place but there was no obligation to give another day instead if worked (unless it was single time and a day in lieu of it)).

Our old employer is now also saying that Bank Holidays were then included in our Holiday entitlement from the 1^st April 2004, but they will provide no proof that it was ever changed, and that the staff agreed to this change.

They say they are willing to pay me 10 days Holiday, because on 1^st April 2004 I would only have been entitled to 15 days Holiday minus 5 days for Bank Holidays, some of the other employees are only being offered 5 days.

I would appreciate any help or advice given, as our old employer has now stopped talking to us as a group and have said they are only willing to discuss it on an individual basis.

Many Thanks

Colin

[ULA]

Re: Help needed regarding Backdated Holidays after TUPE

Hi [MENTION=99509]BigBlueBear[/MENTION]. Thanks for your post can you just please confirm that you are based in the UK and work for a UK company. Many thanks

[BigBlueBear]

Re: Help needed regarding Backdated Holidays after TUPE

Hi Ula, yes I do indeed live in the UK, and work for a Company based in Scotland.

Colin

[ULA]

Re: Help needed regarding Backdated Holidays after TUPE

Is it a Scottish company? Consequently is your contract is based on Scottish law rather than English law?

[BigBlueBear]

Re: Help needed regarding Backdated Holidays after TUPE

Hi, the company is based in Manchester, but has depots in Scotland, Wales and Northern Ireland. I don't think the contract was based on Scottish Law, as they use English based Solicitors.

Colin

[ULA]

Re: Help needed regarding Backdated Holidays after TUPE

Sorry it is taking me a while to unravel this and I'm stillnot sure I have this completely straight, particularly as this deals with holidayentitlement more than 10 year ago.
So, when you joined the company pro-rata up to the end ofthe holiday year 30 April 2001 from joining the firm you accrued 7.5 days ofholiday and what it seems you are saying is that although you accrued them youwere not given the chance to take them off or allowed to carry this forwardinto your first full year of holiday entitlement.
In your first full holiday year and subsequent years, you would have been entitled to take all your leave during the course of the holiday year. Can you confirm therefore that you have taken your holidayentitlement in subsequent years up to the present day. If you have taken yourholiday entitlement each year subsequent to the first year, then in fact thereis only the issue of 7.5 days holiday not taken back in 2000/2001.
My additional comments on your post is that the holidayentitlements you quote are not familiar to me as The Working Time Regulations1998 entitled workers to four weeks paid holiday each year, which could includethe eight bank/public holidays. Then on 1st October 2007 statutory annual leaveincreased from 20 to 24 days and on 1 April 2009 this increased to 28days. The additional holiday can be inclusive of bank holidays.
In addition, I have not heard of the Holiday Act 2003 and ondoing some research it seems to be an Act that relates to New Zealand.

[BigBlueBear]

Re: Help needed regarding Backdated Holidays after TUPE

Hi, the 7.5 days holiday period accrued from July 2000 to 30 April 2001, would be the holidays I could use from 1st May 2001 to 30th April 2002. The Holidays then accrued from 1st May 2001 to 30th April 2002 this amounted to 10 days, would then be the Holidays I could take between 1st May 2002 to 30th April 2003. The Holidays were effectively paid a year behind, except for Bank Holidays as they could be taken the same year.

I have copied part of an email I received from my old employers Solicitor, below.

Start

Having looked at the spreadsheet, Colin does not have all the information correctly identified in relation to holiday accrual and entitlement. I have amended it and its now attached.

The working time directive in relation to holiday entitlement changed in 2007, prior to this businesses had whatever entitlement they wished to give and in some instances was generally only two weeks for the whole year. This would normally be outlined within the contract of employment but as per our discussion this morning, the contracts which dated back to late 90’s and early 2000’s merely referred to a ‘schedule B’ which you don’t have a copy of.

I can only suggest in this regard that you ask the relevant employees to provide you with a copy of their Schedule B as they will have received a copy when they received their contracts of employment years ago.

With regards to when holidays changed – this is as follows:

Employers used to provide a minimum of 2 weeks per year, depending upon the Company this may have been more but there was no requirement to do so, therefore many businesses didn’t give more than necessary.

The Holidays Act 2003 provided that employees should have 3 weeks holiday per year and this came into force on 1 April 2004 onwards. Therefore from 1 April 2004 onwards they should have 3 weeks holiday per year (no bank holiday entitlement but businesses chose to pay to time and a third, time and a half or double time if worked depending upon what contract was in place but there was no obligation to give another day instead if worked (unless it was single time and a day in lieu of it)).

This then changed to four weeks from 1 April 2007, 1 October 2007 it changed to 4.8 weeks and then 5.6 weeks from 1 April 2009.

If any of the employees are able to provide pay slips, schedule B etc. then it may assist, otherwise you can only go on the information as provided above with regards to actual entitlement. Any holidays paid will only be in your records for the past 7 years as this is all you are legally obliged to retain. Any pay information before that will have to come from the employee and their pay slips. I have mine since I started working many years ago so I assume the staff will also have retained theirs.

Anything else I can do to help please let me know.

Finish

Thank you for all the time you have taken to look at my enquiry it is really appreciated.

Colin

[ULA]

Re: Help needed regarding Backdated Holidays after TUPE

Thank you for your response and I have added in my comments in blue in reference to your last post.

Hi, the 7.5 days holiday period accrued from July 2000 to 30 April 2001, would be the holidays I could use from 1st May 2001 to 30th April 2002. The Holidays then accrued from 1st May 2001 to 30th April 2002 this amounted to 10 days, would then be the Holidays I could take between 1st May 2002 to 30th April 2003. The Holidays were effectively paid a year behind, except for Bank Holidays as they could be taken the same year.

This appears to be a verystrange way of calculating holiday entitlement and not one I have heard of before.Can I ask what sector you work in?
What I have experience of iswhere you accrue holiday on a pro-rata basis for the first year workeddepending on start date and the time until the end of your holiday year. Thattime can be taken during that period. You then start your new holiday year withyour full entitlement to holiday which you take during the year and so on in subsequentyears. Should you leave mid-way through the holiday year then again this isworked on a pro-rata basis up to your termination date and you may be either owedholiday pay if you have taken too little or assuming there is provision in thecontract then the employer can deduct from final salary any holiday in excessof your pro-rate entitlement. I have never heard of having to work effectivelya year in hand for your holiday.

I have copied part of an email I received from my old employers Solicitor, below.

Start

Having looked at the spreadsheet, Colin does not have all the information correctly identified in relation to holiday accrual and entitlement. I have amended it and its now attached.

The working time directive in relation to holiday entitlement changed in 2007, prior to this businesses had whatever entitlement they wished to give and in some instances was generally only two weeks for the whole year. This would normally be outlined within the contract of employment but as per our discussion this morning, the contracts which dated back to late 90’s and early 2000’s merely referred to a ‘schedule B’ which you don’t have a copy of.

The Working Time Regulations of1998 granted a mandatory right to paid annual leave and at the time you startedwith the company this would have been 20 days which could be inclusive of the 8bank/public holidays. Therefore it would appear that your holiday entitlement inyour early years of service was incorrect.

I can only suggest in this regard that you ask the relevant employees to provide you with a copy of their Schedule B as they will have received a copy when they received their contracts of employment years ago.

With regards to when holidays changed – this is as follows:

Employers used to provide a minimum of 2 weeks per year, depending upon the Company this may have been more but there was no requirement to do so, therefore many businesses didn’t give more than necessary.

The Holidays Act 2003 provided that employees should have 3 weeks holiday per year and this came into force on 1 April 2004 onwards. Therefore from 1 April 2004 onwards they should have 3 weeks holiday per year (no bank holiday entitlement but businesses chose to pay to time and a third, time and a half or double time if worked depending upon what contract was in place but there was no obligation to give another day instead if worked (unless it was single time and a day in lieu of it)).


There was an Employment Act in2002 for which most of the provisions came into effect on 1 April 2003 but noneof them related to holiday entitlement and as previously said the onlyreference I can find to the Holiday Act 2003 is in New Zealand.
This then changed to four weeks from 1 April 2007, 1 October 2007 it changed to 4.8 weeks and then 5.6 weeks from 1 April 2009.


The change to four weeks asstated in my comment above was earlier than April 2007 then there were furtherchanged on 1 October 2007 it changed to 4.8 weeks and then 5.6 weeks from 1April 2009 which could be inclusive of bank/public holidays

If any of the employees are able to provide pay slips, schedule B etc. then it may assist, otherwise you can only go on the information as provided above with regards to actual entitlement. Any holidays paid will only be in your records for the past 7 years as this is all you are legally obliged to retain. Any pay information before that will have to come from the employee and their pay slips. I have mine since I started working many years ago so I assume the staff will also have retained theirs.

Anything else I can do to help please let me know.

Finish

Thank you for all the time you have taken to look at my enquiry it is really appreciated.

Colin

Do you have your copy of the schedule B that is referred to and or the exact clause in your contract regarding holiday entitlement? I'm sorry but I need to understand exactly how they were calculating the holiday and then can deal with what you should have been getting as I feel that something is not quite right.

[BigBlueBear]

Re: Help needed regarding Backdated Holidays after TUPE

We work in the Transport Industry, and for years we were told that Employment Law for the Transport Industry was different from other businesses.

The Schedule B, they talk about is below.

Schedule B

Qualifying Period
· The qualifying period to run from 1^st May to 30^th April in any year.

Payment
· To be made after 30^th April in any year, except in the case of cessation of employment, when payment will be made with the final wage.

Entitlement
· Up to 1 years’ service within qualifying period – pro rata to 10 days maximum, dependant on number of completed month’s service.
· 1 to 2 years’ service – 10 days
· 2 to 4 years’ service – 15 days
· Over 4 years’ service – 20 days

Bank Holidays
· Usual Bank Holidays. It is often necessary to work on the actual National Bank Holiday. An alternative Holiday will be granted in lieu.
· It is important to note that payment for Bank & Public Holidays can only be made if you have worked both the day before and the day after the holiday itself. If you miss either of those days, you will not be paid for the holiday.

I have also attached a screenshot of part of the spreadsheet I created.

Thanks again

Colin

[BigBlueBear]

Re: Help needed regarding Backdated Holidays after TUPE

Hi, this morning I received a letter from my old employer, which I have placed below, I have also included a section from an email I received early on in the negotiations from my old employers Office Manager, myself and the company Lawyer. I have changed the text colour on the parts that I believe confirm that the Bank holidays were indeed in addition to statutory holidays and that holidays were indeed carried forward into the next holiday period.

I had asked to see the paper work they had, but it was refused.

The email dated 28th February

Hi ?????,

Please see the attached paperwork. Regarding the bank holidays in lieu, I know that they were paid as they fell in lieu of time off (I know because this was the norm until we were advised to stop doing it), which meant those that worked bank holidays got time and a half plus the holiday pay. As discussed earlier, I’d be reliant on evidence from that far back from employees to prove it one way or the other. However, I have looked at Andrea’s sheets for 2001 and Colin ????????? had 7.5 days and took them by the week of 8^th June 2001. In 2003 Andrea has him marked down for 3 weeks PLUS 5 days (as have numerous others) and these have been taken throughout the year. These additional would be the bank holidays, accounted for separately.

I’m wondering if it’s be prudent for you to see Andrea’s sheets in full to get to grips with everything in one go; there’s a lot of them, so it might be worth you coming here, or me bringing them to you. I’ve also got Andrea’s records for holiday pay made over various weeks. One page I turned to was week 6 in 2004 which covers May day bank holiday. Colin, Rab and nearly every other employee was paid for the bank holiday in cash. I’ve no doubt this was normal. I’m going to contact Andrea about it and see what she remembers about it all.

????

The Letter I received this morning


Dear Colin,

Thank you for bearing with me while l have made further checks and enquiries regarding your enquiry regarding holiday pay that might be owed to you from the start of your employment in May 2000.
I have looked again at the records of holiday pay awarded and paid and have concluded that the Company owes you 9.16 days and none of these days were taken in that part year. This is based on the Schedule B reference to holidays awarded on a pro-rata basis in the first part year employment to 30^th April 2001, in your instance, this is eleven twelfths of 10 days.

From 1^st May 2001, you were awarded 10 days holiday entitlement and the schedule was followed until such time that statutory holiday entitlements exceeded those on Schedule B. The Company has not operated a carry-forward scheme and has always worked to a "use them or lose them" policy.

Records show that other than in your first pro-rata year to 30^th April 2001, you have always exhausted your annual holiday allowance. As such, I believe my calculation that you are owed 9.16 days is correct.

Thus, I will pay you 9.16 days at £????? per day (the rate at the date you transferred to ???? ????? ???) on Thursday 30^th March 2017. This payment will be subject to the appropriate PAYE and NI deductions as per a payment after leaving. If you do not agree with the calculations, I will be happy to arrange a meeting with you at the Company's Head Office to discuss the matter further.

Yours sincerely,

[ULA]

Re: Help needed regarding Backdated Holidays after TUPE

The WTR excludes the sectors of activity in air, rail, road,sea, inland waterway and lake transport so thank you for clarifying theindustry that you work in. Schedule B seems to indicate that you have holidayentitlement plus bank holidays however if these are worked then you either gettime off in lieu or if you work either side of the bank holiday then it ispaid. The spreadsheet that you attached seems to indicate that each year forthe periods detailed you have taken your full "carried forward" holiday entitlement and I canonly assume that this has continued for subsequent years.
From the red text in your last post it would appear that youtook the accrued holiday for the first part year you worked in the next holidayyear commencing 1 May 2001 and that you had taken all 7.5 days by 8 June 2001 andI therefore presume that you had no further holiday excepting bank holidays untilthe start of the new holiday year in May 2002.
This appears contrary to the email you have received todayand specifically paragraph 2 and the last sentence “The Company has notoperated a carry-forward scheme and has always worked to a "use them orlose them" policy.”
I think it may be useful to ask your oldemployer for a list of all the holiday you have taken for the period fromjoining the firm up until your TUPE date and then this can be worked back with ourentitlement. That should then be able to determine what holiday pay itpotentially due back to you.

[BigBlueBear]

Re: Help needed regarding Backdated Holidays after TUPE

We have tried to get our old employer to send us a list of all holiday entitlement that we have taken from the old records, but they have refused. We believe that if we could see them, we would be able to prove that they do actually owe us almost a years holiday pay. I have spoken to some of the other employees that are in the same boat, and we think that the only way we might get to see a list of all our Holidays from when we started, would be for us to say that we are all willing as individuals, to take them to the County Court small claims, but we don't know enough on how we would word any letter that we would send to them, giving them notice.

Thanks for all your help, it has been greatly appreciated.

Colin

[ULA]

Re: Help needed regarding Backdated Holidays after TUPE

Claims for unpaid holiday would need to go to an Employment Tribunal (ET) and if you did embark on this you must be able to prove that you hadn't taken all the days you're employer says you did and that you have not been previously paid for them. In bringing an ET claim you need to consider the financial implications and the Tribunal Fees you would need to pay which if you brought the claim for you then this would be £160 issue fee and then £230 hearing fee without any legal costs if you decided to instruct a solicitor to assist you.

I would therefore urge you to try and deal with this without going to tribunal. One thing you could try in order to get your holiday information is to formally ask your old employer for access to your personnel record, contained within may be your holiday records. Under the Data Protection Act 1998, an individual is entitled to submit a written request for access to any personal data, ie any information about him or her held in a structured manual file or on computer. The employer is entitled to charge a fee of up to £10 for this, and they must comply with such a request by providing the individual with copies of the personal data within 40 calendar days.

[BigBlueBear]

Re: Help needed regarding Backdated Holidays after TUPE

Thanks Ula, this could be exactly what we need.
When we make the request for the information, do you think it would be best to do it by sending a signed for letter or do you think that sending an email would be sufficient, and could we ask that our Holiday records be included.

Colin

[ULA]

Re: Help needed regarding Backdated Holidays after TUPE

It is best to send your request by recorded delivery or by email if via the latter method I would also suggest you have the "read receipt" functionality activated, and you should keep a copy of the request and all other correspondence. This will be important as evidence if you need to complain to the Information Commissioner’s Office if the information is not provided.

I would suggest that you ask your old employer for all information related to your holiday entitlements each year and the records held on file regarding holidays that you have booked off each year since joining in July 2000. You should also ask for the inclusion of information relating to the bank holidays you did not have to work and where you did work whether you were paid or received time off in lieu. Ask specifically for copies of both paper and computer records pertaining to this information. They clearly have the records as this is referenced in their correspondence to you but it is not clear if they were paper or computerised.

You should make it clear you are asking for the information under the Data Protection Act 1998 and informing them that such a request should be responded to within 40 days. As I said in my earlier post they are entitled to charge you up to £10 to provide this information.