[Mrs Nicholls]

Hi
Just a quick question,

when a new employee states a holiday already booked on their application form, do i count this time out of their hol pay allowance if it is their normal working days now that i have employed them?

thanks
Lisa

[J. Deans]

It depends on the holiday entitlement you give and how long they will have worked for you when they take the holiday.

Lets say they are taking a week off and they have worked for you for 1 month.
If their holiday entitlement is 1.5 days per month, I would pay them the 1.5 days holiday pay and nothing for the other 3.5 days.

It could be awkward and complicated to pay them a full weeks holiday pay that they have not earned yet - especially if they decide to leave you soon after.

[steve13bcfc]

i would say it would be dependent on the company contract. its right the honour their holiday with time off if they stated they would need time off for holiday. but most companies offer 1 and a half days holiday per month for entitlement. so regarding the lengh of service i would only pay holiday pay from the time of employment to the date of holiday.

you are not legally bound to pay anymore holiday or pay them for time off entitling their holiday

[cml]

When employing such an employee you can within the first 12 months state that they must accrue their holidays before being paid and state this in their contract. 

Should you allow him to take this holiday you would be entitled to pay it and accured it back throughout the year.  But it would be advisable to put a clause in the contract to the effect that should the employee leave before recovery of such accrued holiday payments this will be recovery from salary/wages on termination of employment. 

Den

[Dust Knights]

Whilst CML is correct the first two answers are misleading.

Can I suggest that anyone with an employment question call ACAS or the DTI rather than refer to forums such as these where many answers are a blind shot in the dark!!!

An employer can claim back any holiday pay that has been paid over the accrued entitlement as long as there is a clause to that effect within the Contract of Employment. If that clause is missing then they cannot claim it back.

Chris

[Bertie Boo]

Chris

Having worked for many employers over the years i've always found that holiday entitlement worked in the exact way you have said. I thought it was funny to hear that you cannot take 'unaccrued' paid holiday...

The only exception to this i found was when i went to work for that old dinasour known as 'The Co-Op' and in my contract i was not allowed to take paid holiday for the first 12 months, but that had been around for years and in 1997 they re-wrote it (i dunno why but i have a feeling that they were no longer 'allowed' to have this rule) so it then worked like you said...i know this as i did not take any paid holiday for the first year but the people who started after me did.

I once had a line-manager why tried to pull that stunt "You can't have holiday you've not yet accrued" although she was soon put right when someone pointed out that she'd been away for the first fortnight of the new tax-year...

Cheers

Stephen

[Lesley J]

I have paid in the past holiday pay to a staff member that she had not accrued, and she did not come back to work, so could not get it back out of her wages. alternative was to go to court to try and get it back, but I found out she was deep in debt and would have wasted my time and money. now I only pay what they have accrued.  Lesley J

[Dust Knights]

To DG and Keybrite as I stated above, unless there is an agreement in place you cannot recover an overpayment of holiday pay.

I refer you to the case law of Hill v Howard Chappel, 2001

Hill (H) resigned from her employment in January 2001 after her employer (HC) failed to pay her December salary. Her resignation occurred part way through the Holiday year at HC and she left having taken five days’ more annual leave than she’d accrued. She brought a tribunal claim in order to reclaim her unpaid December salary. The tribunal found in her favour and made an award. But a deduction was made to allow for the fact that she had taken extra leave. The tribunal’s justification for this was its interpretation of the Employment Rights Act 1996 (ERA). In it, s.14(1) provides that deductions may be made from salary if there has been an overpayment.

H appealed to the Employment Appeal Tribunal (EAT). She said that the original tribunal had no authority to deduct the five days’ excess Holiday leave from her outstanding salary. The EAT agreed with this as their interpretation of the ERA differed. It said that s.14(1) was a means for employers to recoup wages that they’d overpaid. It didn’t apply to workers who had taken annual leave that they hadn’t yet accrued. As a result, H was awarded £235.38, which represented the net payment to her of the five days’ leave.

If case law can't settle this debate then nothing can.

Chris

[dg-cleaning]

but I do have a contract stating we can recover any money from wages plus keybrite you should pay staff a week in hand to make sure you are covered should this happen again in future.
Dust my contract has been checked and cleared with my solicitor and cost me a pretty penny to do. It also states to casual staff that holidays will be paid on an accrued basis  and this is not a problem.
Do you employ staff dust?

[dg-cleaning]

ACAS STATED TODAY ON PHONE THAT STAFF CAN BE PAID HOLIDAYS THAT THEY HAVE ACCRUED AND INFACT RECOMMEND THIS METHOD.THIS IS WITHIN THE FIRST YEAR YOU ARE ABLE TO DO THIS.
Why should an employer pay out say a weeks holiday if someone has only worked for them for 3 weeks?
You can also claim back any holidays that they have been over paid but this must be stated in a contract that they have signed.Best bet pay holidays accrued.
Most staff work holiday pay out at 1 1/2 days pay per month, so say your staff work 8 hrs per day at £6 ph you would pay £72 in holiday pay per month!
If they work on a casual as and when basis then simply take an average of the last 12 weeks which they have worked.
THIS INFORMATION IS CORRECT AND CHECKED WITH ACAS AND ALSO MY BUSINESS ADVISOR,  ACCOUNTANT AND SOLICITOR ALL STATE THE SAME REPLY.

[*Chris Browne]

Here is a more simplified version from the CAB site:

http://www.adviceguide.org.uk/nm/index/life/employment/holidays_and_holiday_pay.htm#who_has_the_right_to_paid_holidays


Chris

[dg-cleaning]

In answer to the original question lisa, this is what I would do if I was you.

Write up a written statement or terms and conditions of employment.State that holidays within the first year are paid on an acrued basis unless agreed with your manager to take extra days holiday above the accrued. State clearly that any over payment in holidays will be deducted or added last pay packet should they leave the company either owing hols or due hols.The employer has rights as well after all the employee can be paid holidays which they have earned when they leave employment so its only right if they have taken too many they are due back to employer.I would deffo advise you to get advice from business advisor or solicitor specializing in employment law just to make sure there are no worm holes in your contract.

[Fox]

And don't forget guys that holiday pay will increase from 4 wks per year to 4.8 in Oct.

Fox

[J. Deans]

Chris.
How is my answer misleading?

The advice was only to pay the holiday entitlement accrued at the time they take the holiday!

Anyway, we may have ALL misread the question:

"do i count this time out of their hol pay allowance if it is their normal working days now that i have employed them?"

She seems to be asking (possibly) about a part-time worker.
If a part-time employee only works say, 2 days per week. When that employee takes a weeks holiday, they get 2 days holiday pay. Regardless of which days they normally work - because, obviously - the 2 days will fall in there somewhere.

If a part-time employee has 'fixed' days of work and they want to take a holiday on just one of those days, then they are entitled to be paid (accrued) holiday pay for that day.

We operate flexible working days for our part-time employees.
This benefits them, as well as us.
They can still ask for a day off and we can give them work on another day, so they don't have to use up their holiday entitlement if they don't want to.

And before anyone asks about paying part-time employees holiday pay. We follow the EC Directive ' Part-time workers (prevention of less favourable treatment) Regulations (amendment) 2002 (SI 2002/2035)

Simply put, this states that a part-timer, working for say 2 days per week, is entitled to 2 fifths of the annual holiday entitlement of a full-time worker.

3 days = 3 fifths etc.


As for the rest of it: Obviously you should have it in your contract that if they take unaccrued holidays, you will take it back from their week in hand if they leave!
Talk about stating the obvious!
That is why pretty much all of the advice says only pay them what they have accrued at the time they take the holiday - nothing more.

Hope this helps.

[Bertie Boo]

Quote "That is why pretty much all of the advice says only pay them what they have accrued at the time they take the holiday - nothing more."

Problem with that is that it will not be a very attractive prospect to a potential new worker AND at the end of each year (what ever month you work to/from) you risk having all your staff on holiday @ the same time because they didnt want to take sporadic days off, they wanted a whole week etc.

A lot of companies i have worked for have put it in the contract that some holiday MUST be saved and taken for the christmas shut-down period. If you decide that someone can't take unaccrued holiday (which, as chris said, if the law can't settle it then who can -although i'm not discussing that debate per-se) and you also want to dictate when you DONT want them to work their 'normal' days, you might be in a bit of a pickle.

Cheers

Stephen

[Mrs Nicholls]

hi all

my employee has been with us since 9th of my this year. working between 10 - 16 hours per week, has had a week and 1 day holiday, do i work this out as the average of the last 12 weeks to get a weekly hol pay amount? and hol pay just for the one day she would have worked 4 hours?
so approx 164 hours over a 12 week period / 12 = 13.666 av hours for hol pay plus 4 hours for her day off = 17 to 18 hours paid holiday.

is this right? then when it comes to her wanting another week off do the same thing again even if there is an overlap in the  12 weeks?

thanks
Lisa