Use or lose annual leave?

Downer80

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Hi all,

I'm posting on behalf of someone. They took up a retail job last Sep. They were let go last week (still on probation) and their final payslip had 14 hours holiday pay which I presume was just for 2020?
The person worked 40/50 hours per week.

They had a couple of days off in 2019 but were made take as one of their 2 days off that week. So they took no annual leave in the period of sep to dec 19. The ex employer has said it is gone now as it wasn't taken. Can they do this?

Thanks in advance.
 
Very rough calculation, assuming they worked 4 months, would give 6 1/2 days leave.

A 5 day leave c/f is generally considered reasonable and if not referenced in the contract, that's what I would be pushing for.

It's worth a letter and request to show calculation of leave entitlements and paid leave.
 
No, the ex employer cannot say that statutory holidays due for last year have been lost, assuming the employee did not turn down the opportunity to take them.

The extract below is from the explanatory booklet linked to the citizen information page.


What if an employee does not take holidays within the leave year?
The holidays must be given to the employee within the leave year or, with
the employee’s consent, within 6 months of the following leave year. It is
the responsibility of the employer to ensure that the employee takes
his/her full statutory leave allocation within the appropriate period.
Employees may, with the consent of the employer, carry over holidays in
excess of statutory minimum leave to a following leave year.
 
Very rough calculation, assuming they worked 4 months, would give 6 1/2 days leave.

A 5 day leave c/f is generally considered reasonable and if not referenced in the contract, that's what I would be pushing for.

It's worth a letter and request to show calculation of leave entitlements and paid leave.
Great thanks a mill. They are not the easiest to deal with it but I would love to see him get what he is due.
 
There's no scenario in which an employee loses statutory leave. If they haven't taken it they must be paid it when leaving.
 
Bear in mind AFAIK that holidays are based on Calander months so if they only partially worked in September they are not entitled to leave for that month.
 
There's no scenario in which an employee loses statutory leave. If they haven't taken it they must be paid it when leaving.
out of interest
Do you including overtime When calculating statutory leave due,
Or is statuary leave calculated on standard week work before overtime, in the past Statuary leave was based on the standard week not including OT,
Has it changed to include overtime in resent years,
 
out of interest
Do you including overtime When calculating statutory leave due,
Or is statuary leave calculated on standard week work before overtime, in the past Statuary leave was based on the standard week not including OT,
Has it changed to include overtime in resent years,
No, overtime is not included when calculating holiday pay when the employee is paid based on an hourly rate.
If the employees pay is based on commission, bonuses etc then their holiday pay is based on their average earnings over the previous 13 weeks.
 
Leave is calculated as 8% of hours worked to a maximum of 20 days per year.
Also, the leave year runs from April to March so he the year isn't over yet.
 
There's no scenario in which an employee loses statutory leave. If they haven't taken it they must be paid it when leaving.
That's not entirely true. I have a 'use or lose' clause in my contract. In a previous life I had to get senior counsel opinion on the matter, but in very specific circumstances (acting as an employer).

Statutory leave can be lost if not taken, but the onus is on the employer to demonstrate that the employee was afforded the opportunity to take leave, and told they would lose it if they didn't take it.

It's also not uncommon in certain sectors / employers for the holiday year to be different from the calendar year, or for the treatment on a fixed term contract to be different to a permanent employee. So the starting place is usually a contract. If there's no written contract, the employer doesn't have a leg to stand on.


Also, the leave year runs from April to March
Surely the leave year is set out in the contract? I've had different leave years in different companies (and 1 company even changed their leave year while I was there).
 
It is actually very common that leave entitlements can't be carried be forward. If it is not in your contract, check your employee handbook. I can carry up to three days (More with permission) but all leave must be used within 3 months of the new year. If not, it will be lost. As Red Onion says, once the employer gives the employee an opportunity to use the leave, it is up to the employee to take it.
 
I am referring to Statutory minimum leave.
It is against the law to pay in lieu of the statutory minimum. With the employees consent their entitlement may be carried over into the next year but must be used within 6 months of the end of the year in which they accrued.
It is against the law not to pay in lieu if the employee is leaving and cannot take the holidays before they leave.

What happens to leave entitlements above the statutory minimum is a matter for the contract of employment between the employer and the employee. In the absence of a written contract custom and practice take precedence.
See [broken link removed]for details on Statutory leave.
 
I can carry up to three days (More with permission) but all leave must be used within 3 months of the new year. If not, it will be lost.

Where I work there is a similar policy, but in conversations with HR about staff that report to me, they have acknowledged that they cannot take unused statutory vacation days off employees just because they don't use them in a certain time frame.

The company has an obligation to ensure employees get the opportunity to take vacation, and use this policy to encourage everyone to take appropriate time off. This policy stays on the books to encourage staff to take their days and not end up banking too many where taking a large block at once could be a challenge.
 
Hi Redonion, the Organisation of Working Time Act 1997 defines a leave year as a year beginning on 1st April.
I presume this would affect a person who worked from April to March and wanted to calculate their leave allowance by reference to the 8% rule i.e. 8% of hours worked from April to December and 8% of hours worked from January to March, which could often give more holidays than 4 weeks, especially if a person did overtime.
I used it to my advantage some years ago when I changed job mid-year.
 
Hi Redonion, the Organisation of Working Time Act 1997 defines a leave year as a year beginning on 1st April.
I presume this would affect a person who worked from April to March and wanted to calculate their leave allowance by reference to the 8% rule i.e. 8% of hours worked from April to December and 8% of hours worked from January to March, which could often give more holidays than 4 weeks, especially if a person did overtime.
I used it to my advantage some years ago when I changed job mid-year.
Old income tax year long gone, Where I used to work before I retired (28 days annual leave ) 39 hr week x48 weeks divided by 28
just before anyone asks 48 weeks is used because you are not working the 4 weeks you were on holidays,

It was then put on a direct read chart once you knew how many hrs worked chart showed you how much holidays you had earned so far since start of holiday year/employment,
The clock started ticking once you entered employment, I remember company changed back to start of year it was a 9 months holiday year then rolled on to start of year and worked up holidays changed to x hrs =so much holidays which worked out the same no matter when holiday year started,
 
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Hi Redonion, the Organisation of Working Time Act 1997 defines a leave year as a year beginning on 1st April.
Thanks. I always thought it could be overwritten in contract, but you're correct it's very clearly defined in legislation.
 
Hi Josh,
not quite, the income tax year was 6th April and only changed in 2001.

The point I was making is holidays are directly related to the standard week ,and the amount of holidays allowed per hrs in a company,

In other words if Employee started work on the first March and worked 10 standard 39hrs week your 390hrs will give you the same amount of holidays as starting work on the first April and worked 10 standard 39hrs your 390 hrs or any other time of the year for that matter,

I posted to help Downer80 said they are not the easiest to deal with,
First downer80 need to understand the system for awarding holidays and see if it is fair and legal, then insist on getting paid if Employer
don't pay up and say holiday year is gone since 1st of January which I suspect will not stand up,Use RedOnion fall back position the 1st of April ,

Post no 8 was to highlight what is the standard no of hrs per standard week and for Downer80 could check it out
post no 10 I thanked the person who replied
seeing there was no change since I retired I then explained how holidays were calculated in the company I worked in ,
I also explained that running holiday week from start of year did not do you out of any holidays ,
In fact most workers liked the holiday year to start from January, it allowed Employees to plan there holidays better,
if holiday year starts from Ist of April the summer holiday used up all the holidays earned some finished up owing there Employer holidays after summer break,
It also allowed employees to take a few holiday days before summer break and still have enough for summer holidays ,Employers and Employees arrange holiday year to what suits both best,
 
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