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Back dated holidays

A client has had a staff member resign.  The staff member has said they want paying for all the unused holiday they didn't take over the past few years.  I have to admit I wasn't aware that you could do that, every contract I have had it has been made clear that either I could carry some forward one year at the partner's discretion, or more often that they were used or they were lost.  The idea that I would still have some from years ago and should be paid for them now is an odd one to me.  My opinion is 'Unless the contract says you can carry holiday forward indefinetely and get paid for anything you don't use' then the employee doesn't get paid for them.

But stranger things have happened and I am open to the possibility this might be true.  Any ideas anyone?

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06th Dec 2011 10:31

Contract

Your clients first port of call, as you say, should be the employees contract.  My contract also says I have to use it within the year or with prior agreement I may carry all/or some forward into the next holiday year - I believe this is pretty standard....

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Accountant or legal advisor?

Explain you are the accountant not a legal advisor.

My personal 'man down the pub' opinion would be the opposite myself, ie unless its says "use it or lose it" you client might have a problem. There must be rules and precedents on this however.

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By neileg
06th Dec 2011 10:40

Contract first, WTD next

The working time directive gives an employee the right to paid leave but not the right to pay in lieu.

But i agree with ireallyshould, you aren't an employment adviser so be cautious in your response.

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By Old Greying Accountant
06th Dec 2011 10:58

I thought, as neileg says ...

... they cannot not take it, it is not a right to have holiday, it is a requirement!

If this is above statutory requirement and the contract does say use or lose, how about insisting they use up the holiday in the notice period, sound like they wouldn't want someone like this around anyway!

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By Flash Gordon
06th Dec 2011 12:22

Have a look at the Business Link website

I'm pretty sure they say that now you can only carry over the number of days that exceeds the 4 weeks that they must take and even then only for one year. Not sure when that came into effect though......

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07th Dec 2011 11:23

Why?

Is it relevant perhaps to ask why the employee didn't take his/her leave?

If at the time the leave was due, the employer said something like, 'Sorry but we're really busy and we can't spare you, but don't worry we'll make it up to you', does that put a different complexion on it?

Speaking here as a man in the pub, obviously.

 

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By jndavs
07th Dec 2011 14:16

Holiday
Lifting from the DirectGov website:

Carrying over holidays
You do not have an automatic right to carry leave over. Of your 5.6 weeks entitlement, you must take the first four weeks of the leave, in the year that it is allocated. You can only carry forward the additional 1.6 weeks' leave if it remains untaken, with your employers permission or if it allowed by your employment contract.

If you have a leave entitlement more generous then the statutory minimum, your employer may allow you to carry over any of this additional entitlement if it remains untaken. However, this should be set out in your contract of employment.

Payment in lieu for holiday or 'buying out'
You are not allowed to exchange any untaken statutory holiday entitlement for pay. You must take all of your statutory holiday entitlement each year.

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