Annual Leave and Redundancy

Hi

I'm hoping someone can help me out with this.

I was made redundant last month with 7.5 days of annual leave outstanding.

My employer is refusing to pay quoting the Working Time Regulations 1998 Regulation 15 which gives an employer the right to stipulate when an employee takes annual leave given sufficient notice.

There was a clause in my notice of redundancy stating that any outstanding leave should be taken in my notice period, which I missed as obviously I was worried about other things at the time, however a subsequent email and follow up email to my employer asking for clarification on my outstanding leave was ignored until after my final finish date.

My question is, the Working Time Regulations 1998 not withstanding, is it legal for an employer to force an employee to use their outstanding annual leave as part of a notice period following redundancy.

If not could someone please point me in the direction of the relevant legislation that I can quote back to my (former) Employer.

Thanks in advance.

Yes, I am afraid it is clear. Your contract required it to be used, and the fact that you didn't notice this is not the employers fault. They are not required to bring this to your attention, only to reasonably permit it to be taken when asked for. You really should have taken this up with your manager during the notice period rather than relying on e-mail communication. But the employer is legally correct in this case and you have lost those days.

Thanks for the quick reply

However I am still not convinced my employer is in the right.

Under the Work In Time Regulations it appears that the Employer has to stipulate which days are to be considered as annual leave. This was not done, they may say that given as you were on a six week notice period you days off would be deemed to be the last 7.5 days of this, again i'm not sure this is right legally.

Also I would consider in the modern world that two emails to my former line manager (a director of the company) is sufficient communication as regards my annual leave.

Finally whilst I missed the clause about leave being in my notice period, my redundancy letter also stipulated that I was not required to work those six weeks, however as I had no feedback on my oustanding annual leave, at no point did I consider myself to be on leave from the company and my mobile phone was on for the full six weeks and I was if required available for work for those 6 weeks if required, indeed both an ex colleugue and the above metioned director called me to clear up some matters on more than one occassion.

Also if i'm permitted a little rant, one of the reasons I didn't take use up all of my entitlement this year is that I was working bloomin hard to get the company through very difficult trading conditions, unfortunately it was too little too late, I know making someone redundant is hard enough on all concerned, but then to force the redundee to lose out by forcing them to take outstanding leave as part of their notice period is just plain wrong and i'm not convinced it's legal.

Sorry. I appreciate your pointof view. But the employer is not required to tell you when to take leave, and nor are they required to make you take it. The employer stated, in writing, that you were to take your leave during the notice period and have complied with the law in so doing - the fact that you did not notice this clause and did not do so is entirely your responsibility in law. You might not think it's legal - but I can assure you that it quite definitely is legal and it is rather common.

Yes agree perfectly legal and very common - I put it in all my contracts. You were placed on gardening leave for 6 weeks and paid in full not required to attend work. Your contract was clear that outstanding annual leave is to be used during your notice period so your employer are fine not to pay you it on top.

Thanks again all

Still not happy, but looks like they maybe right.

As a point of interest Eleanor, you say my contract was clear, this clause was actually in my redundancy letter, there is nothing in my original contract of employment that says any outstanding leave would have to be taken during my notice period.

Oh yes sorry, contract was mentioned in a reply which I picked up on but yes you were clear about that.

Wow another quick reply

My question though is can the empolyer use Reg 15 of the WTR 1998 to enforce annual leave during a notice period (gardening leave or not) without having a clause in the employees Contract of Employment specifically allowing them to do this?.

Thanks again

You misunderstand what a contract is. A contract is not the written statement of main particulars (sometimes headed as a contract, but wrongly so). A contract exists even if it is not written down. It includes working practices, company policy, and any other documentation between employee(s) and employer, including things not specific to you alone - such as health and safety rules. The redundancy agreement is, therefore, part of the contract.

An employer doesn't need a specific clause in an original contract enabling them to do everything they might possibly one day want to do. As SarEl says, something can be contractual without being in an original document called a contract of employment, so a letter would be fine.