Holiday argument with employer
Discussion
Is there an employment solicitor in the house? I have a question about the law over holidays. Naturally, it's a bit complicated...
So the situation is I was working full time paye with the standard 20 days holiday + bank holidays, but the nature of this job has uncovered an medical issue I didn't know I had and had no previous symptoms of. This has been confirmed in writing by NHS doctors. I don't blame the company for that issue.
I then asked to be moved down to 3 days a week or I would have to resign (via email). They agreed. But while I asked for a new contract (via email) to be drawn up they only gave me a verbal agreement over the phone. This agreement was to put me on 3 days a week Mondays, Wednesdays, Fridays.
So far this has been functioning at the standard gov.uk holiday accruement of 3x5.6 weeks =16.8 days. (This includes bank holidays right?)
I have already had Christmas, new year and more recently the Friday before and Monday after Easter bank holidays off without a quibble.
Suddenly yesterday at about midday I was told because of the may bank holidays I am now required to work an extra day during the following weeks. Meaning that the bank holidays are now not holidays but unagreed days off in lieu.
I initially told them no given what I understand above. Also given that this has been operating for 5 months without mention, that the contract conditions were implicitly accepted.
Because no contract was drawn up, we are now in a argument over the meaning. I understand it as working M,W,F (and if M is a bhol, so be it) they see it as 3 days a week. (Who's fault is it that no contract was signed, mine or theirs?)
I'm quite prepared to quit immediately over the issue and for numerous other reasons such as; I have been tricked into working extra days already (and things like 'can you cover for a half day' which turns into enough jobs to make a full day), that they are constantly asking me to work extra days (evidence in screenshots) despite the medical issue which makes it painful, and likely and understood, to detrimental to my future health. The overall impression is one of disinterest or lack of care, which I know to be illegal. Every time I have a flare up because of the job I send them picture evidence and take the day off sick.
There's a big list of other more serious and easier to prove failings that are not relevant to this particular issue (like not paying me, unagreed deduction of pay and not paying into my pension, numerous injuries etc. Easily enough to prove they are negligent)
So what are my rights? Is it worth speaking to a solicitor about this? If I quit over it would that construe constructive dismissal?
So the situation is I was working full time paye with the standard 20 days holiday + bank holidays, but the nature of this job has uncovered an medical issue I didn't know I had and had no previous symptoms of. This has been confirmed in writing by NHS doctors. I don't blame the company for that issue.
I then asked to be moved down to 3 days a week or I would have to resign (via email). They agreed. But while I asked for a new contract (via email) to be drawn up they only gave me a verbal agreement over the phone. This agreement was to put me on 3 days a week Mondays, Wednesdays, Fridays.
So far this has been functioning at the standard gov.uk holiday accruement of 3x5.6 weeks =16.8 days. (This includes bank holidays right?)
I have already had Christmas, new year and more recently the Friday before and Monday after Easter bank holidays off without a quibble.
Suddenly yesterday at about midday I was told because of the may bank holidays I am now required to work an extra day during the following weeks. Meaning that the bank holidays are now not holidays but unagreed days off in lieu.
I initially told them no given what I understand above. Also given that this has been operating for 5 months without mention, that the contract conditions were implicitly accepted.
Because no contract was drawn up, we are now in a argument over the meaning. I understand it as working M,W,F (and if M is a bhol, so be it) they see it as 3 days a week. (Who's fault is it that no contract was signed, mine or theirs?)
I'm quite prepared to quit immediately over the issue and for numerous other reasons such as; I have been tricked into working extra days already (and things like 'can you cover for a half day' which turns into enough jobs to make a full day), that they are constantly asking me to work extra days (evidence in screenshots) despite the medical issue which makes it painful, and likely and understood, to detrimental to my future health. The overall impression is one of disinterest or lack of care, which I know to be illegal. Every time I have a flare up because of the job I send them picture evidence and take the day off sick.
There's a big list of other more serious and easier to prove failings that are not relevant to this particular issue (like not paying me, unagreed deduction of pay and not paying into my pension, numerous injuries etc. Easily enough to prove they are negligent)
So what are my rights? Is it worth speaking to a solicitor about this? If I quit over it would that construe constructive dismissal?
I read somewhere recently that the additional BH this year does not have to be given to employees if your company does not want to.
The 5.6 weeks comes from 20 days annual leave + 8 BH, i.e. 28/5 = 5.6 weeks. So if you are off for the extra BH for the King's Coronation, but your company does not count it as a BH, you still get 5.6 weeks, so you get your 20 days reduced to 19.
My employer has stated the extra BH will be treated as such, so this year we all get one extra day off. However, they did not have to do that. So when HMG says "here's an extra BH everyone", you don't necessarily get an extra day off.
But I'm open to be corrected on this, as I'm not an expert, it's just what I read somewhere recently.
The 5.6 weeks comes from 20 days annual leave + 8 BH, i.e. 28/5 = 5.6 weeks. So if you are off for the extra BH for the King's Coronation, but your company does not count it as a BH, you still get 5.6 weeks, so you get your 20 days reduced to 19.
My employer has stated the extra BH will be treated as such, so this year we all get one extra day off. However, they did not have to do that. So when HMG says "here's an extra BH everyone", you don't necessarily get an extra day off.
But I'm open to be corrected on this, as I'm not an expert, it's just what I read somewhere recently.
My view on this one is this all sounds like a mess.
When people start bandying around “law” and “contracts” that’s normally the beginning of the end, and normally for the employee.
You should have a contract to reflect what you’re doing and your employer sounds an amateur. Reasonably you can ask them to fix this.
On the m/w/f, you’re not being very flexible to your employer IMO if there is too much work to do and not enough people and a slew of Mondays they lose due to allowing you to work 3-day week. Can you think of/find another way of compromising here?
Otherwise, given your health issues and perception of your employer I’d recommend you update your CV and try find another job. You don’t seem to be in a healthy job or employer/employee relationship here…
When people start bandying around “law” and “contracts” that’s normally the beginning of the end, and normally for the employee.
You should have a contract to reflect what you’re doing and your employer sounds an amateur. Reasonably you can ask them to fix this.
On the m/w/f, you’re not being very flexible to your employer IMO if there is too much work to do and not enough people and a slew of Mondays they lose due to allowing you to work 3-day week. Can you think of/find another way of compromising here?
Otherwise, given your health issues and perception of your employer I’d recommend you update your CV and try find another job. You don’t seem to be in a healthy job or employer/employee relationship here…
Oh sorry, one thing I should say is sickness is a protected characteristic.
That your employer has made allowances for you knowing your health issue does put you in a strong position here, but if you’re willing and able to just resign and get another job that doesn’t cause health issues. Personally I’d just do that.
If you fancy being cute you could attempt constructive dismissal & be a pain and probably get a few months pay off, but it’s stressful and I’m not sure it’s worth it - nor tbh would it appear outwardly reasonable as it doesn’t sound your employer has been an mediavial abuser to me, just someone trying to run a small business and deal with a difficult situation (employee with health issue) that’s effecting their ability to run the business/do the work. They could have made you redundant during first health issue IMO as you’re not able to perform the role due to health issue, but they’ve tried to work with you and flex , so it seems harsh to try and skewer them over this.
But you could probably make their world difficult for a couple months if you were or that mentality.
I’d advise, you’d probably be happier in a new job so just move on and do that! Life is too short to get locked in battles , it’s not worth it!
That your employer has made allowances for you knowing your health issue does put you in a strong position here, but if you’re willing and able to just resign and get another job that doesn’t cause health issues. Personally I’d just do that.
If you fancy being cute you could attempt constructive dismissal & be a pain and probably get a few months pay off, but it’s stressful and I’m not sure it’s worth it - nor tbh would it appear outwardly reasonable as it doesn’t sound your employer has been an mediavial abuser to me, just someone trying to run a small business and deal with a difficult situation (employee with health issue) that’s effecting their ability to run the business/do the work. They could have made you redundant during first health issue IMO as you’re not able to perform the role due to health issue, but they’ve tried to work with you and flex , so it seems harsh to try and skewer them over this.
But you could probably make their world difficult for a couple months if you were or that mentality.
I’d advise, you’d probably be happier in a new job so just move on and do that! Life is too short to get locked in battles , it’s not worth it!
Edited by stuthe
on Monday 1st May 09:38
on Monday 1st May 09:38Sickness isn't a protected characteristic, disability is. Does the illness amount to disability? Not that it's relevant here, the holiday calculation is a simple matter of calculating it based on the correct set of facts. If there's a disability-related need for reasonable adjustments then that's a separate issue.
If the company policy is 20 days + bank holidays, then that's either 20+8 or 20+9 depending on how the extra bank holiday this year is treated. At 3/5ths that's 16.8 or 17.4 days leave, you just take a day off that total when you have a day off whether it's annual leave or a bank holiday.
I can't see what the employer is doing unless they're saying they need to you to work 3 days in that week for business reasons and in effect they're saying you can' take leave, but you can shuffle your week around if you want the Monday off. Otherwise I think they might be getting confused, does the leave system not include bank holidays because it's implicit that everyone has those off? If so they might be coming from the angle that you're only entitled to 3/5ths of those days off, so you need to work extra hours to make up the 2/5ths * the 4 bank holidays you've had off. But your leave calculation already accounts for that, in effect you've used 2/5ths of a days holiday each bank holiday.
Our HR people and managers used to get this wrong all the time, so we now operate leave hourly to avoid all this.
If the company policy is 20 days + bank holidays, then that's either 20+8 or 20+9 depending on how the extra bank holiday this year is treated. At 3/5ths that's 16.8 or 17.4 days leave, you just take a day off that total when you have a day off whether it's annual leave or a bank holiday.
I can't see what the employer is doing unless they're saying they need to you to work 3 days in that week for business reasons and in effect they're saying you can' take leave, but you can shuffle your week around if you want the Monday off. Otherwise I think they might be getting confused, does the leave system not include bank holidays because it's implicit that everyone has those off? If so they might be coming from the angle that you're only entitled to 3/5ths of those days off, so you need to work extra hours to make up the 2/5ths * the 4 bank holidays you've had off. But your leave calculation already accounts for that, in effect you've used 2/5ths of a days holiday each bank holiday.
Our HR people and managers used to get this wrong all the time, so we now operate leave hourly to avoid all this.
Thanks for the replies.
Given they days I have had off, the days worked and how many days I have left, the 16.8 calculation appears to be correct
The thing that irked me was that I had taken bank holidays off before without notice - it's a bank holiday, but then out of the blue on the Friday pm of a bank holiday suddenly I have to make up the extra day. No notice. No care of plans I had already made etc. No acknowledgement that this had already been in operation. That typical ignorant attitude that they own you and you have no private life.
I found it insulting, which is what I said at the time. (Probably shouldn't have but really I paused for a moment to decide if I was going to walk out in the spot, so they got lucky here).
As for covering work, there's 100 other people doing the same thing. I'm one of their best apparently, which is why they're always trying to get me to work more. I would be happy to do this if I didn't have this issue that stops me. 5 days of no pain is better than 3 with it, believe me.
As implied, it seems like someone else had a look at the "contract" and/or they discovered they had more work on that week. "who can I get to do extra work? Oh I know..."
If I work these days and I react.. it's photo evidence, off to the GP, quit and then solicitor... Because IMO that constitutes a willful lack of care for my situation, while also admitting they know about the problem too.
Given they days I have had off, the days worked and how many days I have left, the 16.8 calculation appears to be correct
The thing that irked me was that I had taken bank holidays off before without notice - it's a bank holiday, but then out of the blue on the Friday pm of a bank holiday suddenly I have to make up the extra day. No notice. No care of plans I had already made etc. No acknowledgement that this had already been in operation. That typical ignorant attitude that they own you and you have no private life.
I found it insulting, which is what I said at the time. (Probably shouldn't have but really I paused for a moment to decide if I was going to walk out in the spot, so they got lucky here).
As for covering work, there's 100 other people doing the same thing. I'm one of their best apparently, which is why they're always trying to get me to work more. I would be happy to do this if I didn't have this issue that stops me. 5 days of no pain is better than 3 with it, believe me.
As implied, it seems like someone else had a look at the "contract" and/or they discovered they had more work on that week. "who can I get to do extra work? Oh I know..."
If I work these days and I react.. it's photo evidence, off to the GP, quit and then solicitor... Because IMO that constitutes a willful lack of care for my situation, while also admitting they know about the problem too.
As an employer if someone was 5 days and dropped down to 3 days then their 8 bank holiday days would be pro-rata'd down to 4.8 days.
What if someone worked one day a week. Would the expectation be they got 4 days annual leave and 8 bank holidays?
I'd imagine in the original contract there may be something that covers the pro-rata of bank holidays for non-full time employees.
What if someone worked one day a week. Would the expectation be they got 4 days annual leave and 8 bank holidays?
I'd imagine in the original contract there may be something that covers the pro-rata of bank holidays for non-full time employees.
Sy1441 said:
As an employer if someone was 5 days and dropped down to 3 days then their 8 bank holiday days would be pro-rata'd down to 4.8 days.
What if someone worked one day a week. Would the expectation be they got 4 days annual leave and 8 bank holidays?
I'd imagine in the original contract there may be something that covers the pro-rata of bank holidays for non-full time employees.
As I understand it, that's not how the law works. It goes by the days*5.6 calculation. That includes the bank holidays.What if someone worked one day a week. Would the expectation be they got 4 days annual leave and 8 bank holidays?
I'd imagine in the original contract there may be something that covers the pro-rata of bank holidays for non-full time employees.
What occured to me earlier today is I *bet* they take these two early may bank holidays out of my 16.8 day allowance, even though I had to work extra to cover them.
For the record I have/had 7 days left to take. Let's see if this is suddenly 5... This is despite the fact the business was closed on these bank holidays so I'd have had no choice but to take them anyway.
Interested to see what game they're going to play here.
mattikake said:
As I understand it, that's not how the law works. It goes by the days*5.6 calculation. That includes the bank holidays.
What occured to me earlier today is I *bet* they take these two early may bank holidays out of my 16.8 day allowance, even though I had to work extra to cover them.
For the record I have/had 7 days left to take. Let's see if this is suddenly 5... This is despite the fact the business was closed on these bank holidays so I'd have had no choice but to take them anyway.
Interested to see what game they're going to play here.
You already worked the 'extra' day in the weeks where the Monday was a bank holiday, and had the Monday off instead? If that's the case, then they should not be taking the any out of your remaining (well unless they pay you an extra days pay for the extra day...)What occured to me earlier today is I *bet* they take these two early may bank holidays out of my 16.8 day allowance, even though I had to work extra to cover them.
For the record I have/had 7 days left to take. Let's see if this is suddenly 5... This is despite the fact the business was closed on these bank holidays so I'd have had no choice but to take them anyway.
Interested to see what game they're going to play here.
However, if you DID have those Mondays off as 'bank holidays' then yes they should be taking 2 days off your holidays as your pro-rata'd holiday total includes the pro-rata'd bank hols.
This happens a lot when people start doing less than 5 day weeks, the bank hol entitlement has to be added into normal leave then pro-rata'd and if you want bank hol off, a day gets taken off the total. That also means that if you do take all bank hols off as leave, you have less than the normal 4 or 5 weeks of leave to take alongside them, as you really only get eg 3/5 of all bank hols 'free'
Edited by MickC on Wednesday 3rd May 12:46
Gassing Station | Jobs & Employment Matters | Top of Page | What's New | My Stuff