• Replies 15 replies
  • Subscribers 9 subscribers
  • Views 10940 views
  • Users 0 members are here
Options
Related

Is this lawful?

William

Hi All

Just want to run something by you and check if its right or not - we have recently terminated someone's contract (due to poor performance) and put them on garden leave for their 1 month notice. During this time they had some holiday booked and I informed them that by their leaving date, their taken holiday would be 2.5 days over what they accrued, so would be deducted from their final pay.

The employee then asked to cancel 2.5 days of their holiday. I responded a few days later to say no, this wasn't possible due to planned workloads. They said 1 of the days was from last week and they actually did some work as part of their handover on this day. They said had I responded quicker they could have explained that this was one of the dates they wanted to cancel.

My question is can we maintain them taking the level of holiday booked and refusing the request, in light of the fact it will lead to a deduction from their final pay? Could they bring a claim over this in view of the fact they requested to cancel the 2.5 days (given they are on garden leave anyway I could see why they would do that!)

Many thanks!

  • Maybe...

    But I am not sure its reasonable and that's an important test.

    Generally holiday can only be cancelled by mutual agreement or by employer giving certain notice

    However the employer also needs to act reasonably and making someone take AL during their notice which takes them over their accrued AL isn't that reasonable
  • Hi William

    If you've put them on gardening leave doesn't the issue of annual leave fall away completely? You've instructed them not to attend the workplace, so surely they don't need to take annual leave as there's no work to do. (this would change if you wanted to bring them back in to the workplace to work their notice but they were then not available).
  • in reply to Alex Hooper
    Hi Alex
    But see
    www.xperthr.co.uk/.../

    There should be an express contractual right to deduct from final pay excess holidays taken like this.

    Even if one exists, I think in the circumstances many employers wouldn't be intent on trying to get absolutely last pound of flesh by insisting on the deduction and just call it square.
  • in reply to David

    Hi David

    My understanding was the same as the article - but I though that was about using up outstanding accrued holiday during gardening leave (we have have an explicit contractual clause to this effect and use it regularly).

    What I didn't understand is how you could force them to take more holiday than they've accrued while on gardening leave , therefore putting them into a deficit that you then make a deduction for. 

    I read it as:

    Employee has booked 2.5 days holiday. If  they had remained employed  until holiday year end  they would have had the allowance to cover this.

    Employee dismissed and put on gardening leave.

    New termination date means there is not enough holiday allowance accrued to cover the 2.5 days

    Despite being on gardening leave, employer is forcing the employee to take the previously booked 2.5 days on top of gardening leave (ie simultaneously) , causing an annual leave deficit that they will make a deduction for in final payroll. That felt like effectively reducing their notice period by 2.5 days.

     

    (If you were asking them to work their notice AND insisting they took the previously booked holiday then I understanding making the deduction as they were unavailable to work - although it seems a bit tough to dismiss someone and force them to take a previously booked holiday that then incurs a deduction when they no longer want to take it)

    Sorry if I'm missing something, it's been a tough old day.

  • in reply to Alex Hooper

    Agree entirely with your analysis and accept that the circumstances differ rather, Alex. However,  arguably the 2.5 days booking was made in full compliance with the WTR and so the employer (still arguably) might be able to insist on it going ahead as prebooked holiday, irrespective of this resulting in an entitlement shortfall as a result of the enforced termination of employment before the end of the holiday year and on deducting the shortfall as per contract.

    But agree this is at a minimum borderline unreasonable in a legal sense and in a pragmatic sense not at all reasonable.

  • in reply to Alex Hooper

    Thanks all. It sounds like we could be accused of being unreasonable but could that lead to a claim? For what, unlawful deduction of pay?

    I know for a fact the employee is away next week on holiday, but he could say he is still available for work (remotely) if it was necessary. He has been sent a couple of pieces of work to finish during the garden leave and has completed these. Does the fact he's away next week make any difference?

  • in reply to William

    Just to add, it's the excess holiday at question here. We have the clause for using up untaken AL while on garden leave, so he's asking to remove the difference of what he previously booked, so he doesn't have a pay deduction made. My boss is not keen to adhere to this though!

  • in reply to William
    Your boss sounds like one of those kind and generous souls who'd always ensure that if they came across someone drowning they'd be at pains to throw them both ends of the rescue rope instead of just the one.......
  • in reply to David
    Haha yes, you might be right David! But to convince the boss to let it go, is there actually a claim the employee can make at ET over this? I could do with explaining that and how likely he would be to win...