How much should this employee have been paid?

Discussion in 'Employment & HR' started by Mike in London, Jun 3, 2021.

  1. Mike in London

    Mike in London UKBF Newcomer

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    No, not covid related as far as I'm aware. Don't believe he was genuinely I'll.


    Thanks for these comments, looking like it isn't clear-cut.
     
    Posted: Jun 4, 2021 By: Mike in London Member since: Jun 3, 2021
    #21
  2. Employment Law Clinic

    Employment Law Clinic Verified Business ✔️

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    I wouldn’t reach that conclusion at all.

    The employer was aware that they've both previously had employment where bank holidays were paid days off, but beyond that, the employer was fuzzy about agreeing any terms except the rate of pay & daily hours (perhaps had expectations that the employment would last & details could be agreed later), but would be resentful to be obliged to pay them for bank holidays, having not explicitly agreed to this.

    Karl Limpert
     
    Posted: Jun 4, 2021 By: Employment Law Clinic Member since: Aug 10, 2009
    #22
  3. Employment Law Clinic

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    I would have thought it would be clear-cut, and therefore I do not understand why Cyndy is inferring anything more than legally-necessary to make it a legally-compliant employment contract. If a detail wasn’t expressly agreed, there’s no assumption typically made that infers more than minimal legal terms into the contract.

    Maybe the employee expected full-pay for sick days. Or a bonus for completing a whole week. Or redundancy pay for voluntarily leaving. But just because one party expected something to happen, or to have an obligation to do something (like having to pay bank holidays), that doesn’t mean they’re entitled/obligated to these things, unless that was expressly agreed.



    Karl Limpert
     
    Posted: Jun 4, 2021 By: Employment Law Clinic Member since: Aug 10, 2009
    #23
  4. IanSuth

    IanSuth UKBF Big Shot

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    It will come down to EXACTLY what the contract said re holiday entitlement, did it say 20days + statutory holidays or did it say 28days for instance, if it said the former then no argument, Cindy is 100% correct and they get the easter bankhols paid, if it said the later then you need to take the number of weeks employed and work out 5.6 weeks pro rata from that (adjust depending on exact days in contract).

    I had a client in the past who had a very well constructed contract, it said something like "25 days + statutory holidays, however in the first 3 months (or longer if probation is extended) holidays will accrue on a pro rata basis and you can not have paid leave beyond that amount without express agreement of the HR Director" this allowed them to pay BankHols if someone started just pre Xmas or Easter if they wanted to, but stopped them having to if someone did what this employee did.

    For the small sums we are talking is it worth the hassle of trying to save some holiday pay ?
     
    Posted: Jun 4, 2021 By: IanSuth Member since: Apr 1, 2021
    #24
  5. Employment Law Clinic

    Employment Law Clinic Verified Business ✔️

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    Without any written terms whatsoever, it’s very difficult to say EXACTLY what the contract said. Except to observe that it didn’t express much at all in very EXACT terms, and anything that was agreed was rather fuzzy.


    For the small amount of work involved, plus a week of sick leave attracting holiday pay, should the OP not feel reluctant to pay any more than they absolutely have to?


    Karl Limpert
     
    Posted: Jun 4, 2021 By: Employment Law Clinic Member since: Aug 10, 2009
    #25
  6. Employment Law Clinic

    Employment Law Clinic Verified Business ✔️

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    I've seen contracts like this before, and successfully argued that the construction means they're very generous: 25 days, plus the 28 days statutory holidays provided by the Working Time Regulations is 53 days - quite a lot of leave! Would never recommend a client try to rely on such crazy terms as something like that; always better to simply ignore terms about bank holidays, statutory (unless only referring to the minimum statutory provided) and just provide the clear number of days allowed, and when these will need to be taken, if that includes bank holidays.

    Karl Limpert
     
    Posted: Jun 4, 2021 By: Employment Law Clinic Member since: Aug 10, 2009
    #26
  7. WaveJumper

    WaveJumper UKBF Legend

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    I have a feeling going forward Mike is going to be very reluctant to ever employ anyone again and probably going to have a headache all weekend
     
    Posted: Jun 4, 2021 By: WaveJumper Member since: Aug 26, 2013
    #27
  8. Employment Law Clinic

    Employment Law Clinic Verified Business ✔️

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    Or maybe Mike will simply get the terms of the employment clearly agreed, and put in writing, before the start of the employment (making sure to not offer ## days plus statutory holidays, unless they want to be particularly generous).


    Karl Limpert
     
    Posted: Jun 4, 2021 By: Employment Law Clinic Member since: Aug 10, 2009
    #28
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  9. WaveJumper

    WaveJumper UKBF Legend

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    In all fairness I think he's probably learnt a very important lesson and a good steer for others coming to the forum
     
    Posted: Jun 4, 2021 By: WaveJumper Member since: Aug 26, 2013
    #29
  10. Employment Law Clinic

    Employment Law Clinic Verified Business ✔️

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    A couple of very important lessons: don't categorically agree anything, and definitely don't put anything in writing, until you're sure you want to offer any more generous terms than minimum legally required. (And when anything is committed to writing, make sure you know EXACTLY what it does say, not only what you intended for it to say.)


    Karl Limpert
     
    Posted: Jun 4, 2021 By: Employment Law Clinic Member since: Aug 10, 2009
    #30
  11. Newchodge

    Newchodge UKBF Legend

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    They may want to avoid having to pay the additional 2-4 weeks wages if the employee takes the unpaid wages successfully to tribunal and their failure to supply written terms of service on day 1 is penalised.
     
    Posted: Jun 5, 2021 By: Newchodge Member since: Nov 8, 2012
    #31
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  12. Employment Law Clinic

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    I’m going to resist the rabbit hole of ifs & buts, procedural technicalities & countermeasures that are invited by this.

    There is no reason that the OP shouldn’t be paying the wages due; and by asking their opening question, I assume they intend to do exactly that. What sum that is (or how it’s calculated), I believe is set-out perfectly clearly above.


    And to explain my view again, I do not see, have not read above, any compelling reason why bank holidays should be paid as part of that. It matters not one jot whether the OP was minded to pay these, whether the employee expected to be paid for these, or even if they both thought bank holidays would be paid. If it wasn’t discussed & agreed that bank holidays were to be paid, inferring otherwise is beyond the reasonable steps a tribunal needs to take to determine the particulars of employment; if it wasn’t agreed between the parties, it’s not a contractual term, and the tribunal should avoid what ifs & maybes wherever possible – as is very possible here.


    Karl Limpert
     
    Posted: Jun 5, 2021 By: Employment Law Clinic Member since: Aug 10, 2009
    #32
  13. Newchodge

    Newchodge UKBF Legend

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    We will have to agree to differ, however, as the employee left in early April and it is now June, I assume that the ex-employee is taking some kind of action?
     
    Posted: Jun 5, 2021 By: Newchodge Member since: Nov 8, 2012
    #33
  14. Employment Law Clinic

    Employment Law Clinic Verified Business ✔️

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    Cyndy, in the absence of written terms to stipulate otherwise, why wouldn’t this logic apply equally to the second week too?

    There is no agreement that just because the employee couldn’t work (due to sick, rather than the workplace being closed) that they don’t get paid!

    What is it about the second week that somehow changes the unwritten agreement that they are paid Monday to Friday? There's nothing at all to infer being paid Monday to Friday may vary, based on the reasons work isn't done.


    Requiring negative terms for every potential instance that pay is not due would be an enormous undertaking, if ever that were necessary.



    Karl Limpert
     
    Posted: Jun 5, 2021 By: Employment Law Clinic Member since: Aug 10, 2009
    #34
  15. Jamie Goodwin

    Jamie Goodwin UKBF Newcomer

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    He should be paid for the hours that he worked. 32 hours I believe - so £320 subject to deductions. You should not need to pay him SSP as his length of service isn’t sufficient.
     
    Posted: Jun 7, 2021 By: Jamie Goodwin Member since: Feb 7, 2018
    #35
  16. WaveJumper

    WaveJumper UKBF Legend

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    I am sure ill be corrected by the HR experts but I thought you would be entitled to SSP from the day you started work
     
    Posted: Jun 7, 2021 By: WaveJumper Member since: Aug 26, 2013
    #36
  17. Newchodge

    Newchodge UKBF Legend

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    As long as you have started work, ie worked for 1 minute, yoiu are entitled to SSP as long as your wages are high enough. (£120 per week).
     
    Posted: Jun 7, 2021 By: Newchodge Member since: Nov 8, 2012
    #37