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Rolled up holidays - Tillet - 17th October 2011
[FONT="]Rolled up holiday pay.[/FONT]
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[FONT="]The courts have upheld the practice of rolled up holiday pay where certain conditions are met. Lyddon v Englefield Brickwork Limited, 2008, IRLR 198.[/FONT] [FONT="] [/FONT]
[FONT="] [/FONT][FONT="]Conditions[/FONT]
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[FONT="] There must be mutual agreement between the parties on the issue of rolled up pay and the agreement must be sufficiently clear and transparent.[/FONT]
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[FONT="]The rolled up holiday pay must be a true addition to the normal contractual pay.[/FONT]
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[FONT="]Provision for rolled up holiday pay clearly incorporated into the contract of employment and the amount allocated to holiday pay should be clearly identified the tract and preferably shown in the payslip.[/FONT]
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[FONT="]Records should be kept of annual leave and reasonable steps taken by the employer to ensure that workers take their holidays.[/FONT]
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[FONT="]Rolled up holiday pay may still therefore be challenged if the above conditions are not met. Equally id the sum paid for annual leave by way of the rolled up addition does not truly represent the workers earnings, averaged over a period of 12 weeks, a claim may be persued to recover the under payment. Effectively each case would have to be assessed on its own facts.[/FONT]
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[FONT="]A claim would be brought as a breach of Regulation 30 of the Working Time Regulations (failure to comply with the provisions regarding paid leave). This claim must be brought within 3 months of the act complained of (i.e. the period of leave to which the claim relates)[/FONT]
[FONT="]Alternatively a claim can be pursued for unlawful deduction of wages. The time limit for this claim is within three months of the last of a series of deductions.
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Anyone dealing with the issue in the workplace would not be far wrong if they were to point out the employer that the benefits to them of using rolled up holidays are probably more apparent than they are real if they are to avoid a legal challenge for failing to implement the conditions set out in Lyddon vs. Englefield Brickwork Ltd.
A further point that might be made is that any one who feels that they have been wrongly treated regarding rolled up holidays will only stand a realistic chance of perusing the issue if they are a member of a Trade Union, and who better than Unite!
Rolled up holidays - Jack - 17th October 2011
Whats rolled up holidays?
Rolled up holidays - kevin wooldridge - 17th October 2011
'Rolled up' holiday is when you take the contracted holiday as a cash sum instead of taking the holiday.
I am not sure that this judgement is correct. My understanding is that the European Court have made the decision based upon the Working Time Directive and it is not within the power of British courts (Scottish, Irish or English) to direct otherwise. It would be useful Tillet if you could actually post a reference to the conclusion of the judgement rather than the case to which it refers. I can't find anything on the EU page about a judgement being made by the ECJ..
Rolled-up holiday pay is bad news all round and ful of contradictions....such as the one quoted above where employers are urged to encourage employees to take their due holiday at the same time as as 'denying' the right through the use of Rolled-up holiday....
Rolled up holidays - Marcus Brody - 17th October 2011
Are people given the option of taking either holiday or money, or is the decision forced on them? If people have the choice, I don't see why it's a problem - I've had years when I've not managed to use up all of my holiday entitlement, when I'd have loved to have the option of 'selling' the unused days back to the company for a bit of extra cash rather than just losing them. However, the fact that it's gone to court suggests that the term actually relates to the situation where employees aren't given the choice, and instead are just told that they can't take their holiday time. I've never come across this situation, but as Kevin says, it sounds like bad news.
Rolled up holidays - monty - 17th October 2011
Marcus Brody Wrote:Are people given the option of taking either holiday or money, or is the decision forced on them? If people have the choice, I don't see why it's a problem - I've had years when I've not managed to use up all of my holiday entitlement, when I'd have loved to have the option of 'selling' the unused days back to the company for a bit of extra cash rather than just losing them. However, the fact that it's gone to court suggests that the term actually relates to the situation where employees aren't given the choice, and instead are just told that they can't take their holiday time. I've never come across this situation, but as Kevin says, it sounds like bad news.
Rolled up 'Holiday Pay' is usually forced upon short term contract workers in my experience...................
Rolled up holidays - monty - 17th October 2011
p.s....has anyone consulted their union rep on this one yet ??????
Rolled up holidays - monty - 17th October 2011
Marcus Brody Wrote:Are people given the option of taking either holiday or money, or is the decision forced on them? If people have the choice, I don't see why it's a problem - I've had years when I've not managed to use up all of my holiday entitlement, when I'd have loved to have the option of 'selling' the unused days back to the company for a bit of extra cash rather than just losing them. However, the fact that it's gone to court suggests that the term actually relates to the situation where employees aren't given the choice, and instead are just told that they can't take their holiday time. I've never come across this situation, but as Kevin says, it sounds like bad news.
Hey Marcus, You are legally entitled to 'use up' all your holidays !!
Rolled up holidays - kevin wooldridge - 17th October 2011
OK.. I have now had a chance to check out this case. It isn't made clear in Tillet's original post, but this is not a new ruling, but in fact a ruling from 2008! Quite why Tillet and/or Unite trade union have chosen this moment to publicise the case isn't entirely certain...
The legal situation appears to be that the European Courts have declared Rolled-up holiday pay to be incompatible with the Working Time directive (WTD) (the same directive that restricts workers to a 48 hour week except in exceptional circumstances and then only as a permissive measure). The UK government has taken its time in applying the full implications of the WTD, not just this current bunch but the previous New Labour variety as well. That has led to a number of cases which lie on the 'cusp' of the law. Despite the fact that implementation of the WTD would have led to these cases now being outdated, the ambiguity as to the interpretation of the law has led to such cases still coming through to tribunals. This particular tribunal ruling says that there was an implied contract for holiday pay to be rolled-up and there was no doubt that the correct sum was paid. This is despite the practice being proscribed by the WTD....the lack of definition of the directive allowing employers to carry on the practice.
The fact that this case has not been appealed to the European court in the period since 2008 suggests to me that there is little chance of that court overruling the industrial tribunal. It's just another case of the British government fudging European law, to the detriment of UK workers. As I said at the outset, I have no idea why Tillet is raising this matter right now. It is certainly not a definitive interpretation of European case law...
Rolled up holidays - Marcus Brody - 18th October 2011
monty Wrote:Hey Marcus, You are legally entitled to 'use up' all your holidays !!
Of course you are. But I've sometimes got to the end of the year and haven't taken all my holiday entitlement. I might not want to take time off in March, particularly if my other half can't get leave at the same time. In that sort of situation, I'd quite like the option of getting a bit of extra money in exchange for the unused days of leave, rather than either losing them or taking them but spending the time doing something tedious like decorating!
However, no-one should be compelled to give up their holiday entitlement if they don't want to.
Rolled up holidays - Dinosaur - 18th October 2011
Am with Marcus, have never used up my leave entitlement yet, seem to have 8 unwanted days this year again (and most of those Bank Holidays were frankly completely pointless, not even anything decent on tv). Much rather have the cash