Gross misconduct and holiday pay.

[jon1965]

Does anyone know if you are entitled to accrued holida y pay when dismissed for gross misconduct. I always thought that it was summary dismissal without notice or accrued holiday pay. However i have read that under the working time directive you are entitled to accrued holiday pay. It may not seem right to me but the law is the law and if i am entitled to it.

[oscar]

Re: Gross misconduct and holiday pay.

Does anyone know if you are entitled to accrued holida y pay when dismissed for gross misconduct. I always thought that it was summary dismissal without notice or accrued holiday pay. However i have read that under the working time directive you are entitled to accrued holiday pay. It may not seem right to me but the law is the law and if i am entitled to it.

If you are dismissed from any role, you are entitled to be paid any holiday you have on a pro rata basis.

So if you have 20 days, and are sacked on 1 April, (assuming 01/01 to 31/12 holiday year) then you are entitled to be paid for 5 days assuming that you have not taken any.

I know of several people, who have been paid accrued holiday pay when kicked out of a company. You are, of course, not entitled to payment in leiu of notice.

[jon1965]

Re: Gross misconduct and holiday pay.

Oscar thanks.
I was dismissed for gross misconduct on 27th April 2011 . Now my holiday year was Jan to Dec and was 25Days+ Bank Holidays. I calculate that as about 8 days but I think I had taken 1 or maybe 2 so it's 6 or 7 days.

Now I know this is way to long to go to ET but is there any way of getting the money out of the company.

I accept the no pay in lieu and frankly think it a bit rich under the circumstances that I try, but if they want to use the law they should be prepared to stick to it.

What do you think?

[oscar]

Re: Gross misconduct and holiday pay.

Oscar thanks.
I was dismissed for gross misconduct on 27th April 2011 . Now my holiday year was Jan to Dec and was 25Days+ Bank Holidays. I calculate that as about 8 days but I think I had taken 1 or maybe 2 so it's 6 or 7 days.

Do you have your FINAL wage slip still?? Its not always noticable that the payments have been made, especially if you were dismissed mid month/pay cycle.

You calculation would be roughly correct, but you would have to be sure on how many hols you had taken.

[jon1965]

Re: Gross misconduct and holiday pay.

I had a payslip in April that was for the full month and in may it was just a tax rebate. I doubt very much if I still have the payslips and it will be the new year before I can search. The payslip in May was just a tax rebate.

I am pretty confident that I only had 1 days holiday in 2011 , I went sick on 7th March and remained signed off until the date of my dismissal which was 27/4.
I was paid up until the end of April so I calculate I was overpaid by 2 days (28th and 29th) and am therefore owed 5 days holiday.

My thoughts are that I will write to HR referencing the holiday I took and ask them to pay my holiday pay

[SXGuy]

Re: Gross misconduct and holiday pay.

Oscar thanks.
I was dismissed for gross misconduct on 27th April 2011 . Now my holiday year was Jan to Dec and was 25Days+ Bank Holidays. I calculate that as about 8 days but I think I had taken 1 or maybe 2 so it's 6 or 7 days.

Unless your contract says 25 + 8 then that doesnt sound right.

holiday entitlement is Days per week * 5.6 up to a max of 5 days per week.

So anything over 5 is still 5*5.6

If you do a 5 day week thats 28 days including bank holidays.

If you are dismissed, then you are due any holiday accrued up to the date of leave, less any already taken.

Usually, if you are dismissed after your last pay then the holiday will be added to your final following payslip.

If you are due holiday, had your P45, then you should complain, they should then issue you a further final payslip including holiday remaining, and tax it at 0T, then they must notify HMRC that you were paid more than your P45, which HMRC should then notify your new employer of.

[SXGuy]

Re: Gross misconduct and holiday pay.

I had a payslip in April that was for the full month and in may it was just a tax rebate. I doubt very much if I still have the payslips and it will be the new year before I can search. The payslip in May was just a tax rebate.

Doesnt sound right either, if all the payslip had was a tax rebate, then they have run your leaving date up to a month later than should have, and included no pay which means you get an extra month of tax allowance, and as there was no pay, you would techically get a tax rebate instead.

What they should have done, was include your remaining holiday entitlement, so this needs sorting really.

[jon1965]

Re: Gross misconduct and holiday pay.

Well all I can tell you is that my contract stated that I was entitled to 25 days annual leave and bank holidays. What confused the issue I guess is that payday was 26th and I was dismissed on 27th so I had already been paid up to the end of the month. The date of my very last payslip was 31/5/11.

I think maybe I need to write to HR asking for copies of my two payslips and an explanation of the breakdown.

[SXGuy]

Re: Gross misconduct and holiday pay.

Ok

The payslip dated 26th? i take it this was also May?

Couple of issues, final payslip would be after the 27th this is correct, but really, they should have dated it as the following pay date. (cant issue 2 payslips same month) So long as the 2 payslips have different period numbers tho this should work out ok for tax purposes.

2nd issue, the final payslip should include any holiday not taken accrued up to the 27th.

So what id ask if it was me is.

1) copies of the last 2 payslips
2) accrued holiday not taken up to 27th, why was this not paid

As i said before, seems they have made an error somewhere, final payslip should include holiday owed, but it didnt, instead it included a tax rebate, because it assumed you didnt work, but was still employed, thus you got your full monthly tax allowance offset against your ytd income, and it would think, you had paid to much tax.

What they should do really, is run 1 more month and issue another final payslip, add your holiday and notify HMRC.

But i will warn you, since you got a tax rebate by mistake, this will obviously reduce the amount of holiday you are paid. So dont expect the whole lot.

EDIT: having said all that, i know of companies that just pay Gross and tell you to sort the tax yourself, this is not the right way to do it, but they do it anyway, if they did, you would get the full holiday with no tax rebate offset, and id keep my mouth shut about it