Unfair dismissal?

[smileyhappy]

A friend of mine gave in his resignation to his employers on the 10th July, planning his last day to be the 11 August. He had saved up his leave allowance so he would be able to have it paid out to him as well, as he is then off travelling around the world for 6 months and has budgeted to work up until that point. But his employers told him yesterday that they would like him to work up until next week and then take his leave from then instead, obviously something which took him by suprise and came as a bit of a shock. Are they allowed to do this and what rights does he have in this kind of situation? Any advice would be appreciated!

[Loosehead]

They do not have to pay in lue of leave, they are within their rights. I doubt any serious employer would allow someone to do what he is attempting. There will be something in his contract saying that there is no cash alternative to leave.

[MargeB]

An employer can cancel leave if they have good reason. They have to formally cancel it though. Tell him to be verrry careful about what is said and done at this point. I don't advocate playing silly bu**ers, but an avenue open to him is for them to informally REQUEST it, and for him just to take the leave anyway. A REQUEST is not a DIRECT INSTRUCTION.

[acw]

Does this friend want to work until the 11th July, and then be paid for his leave after that!?!

Well if he's given in his notice, then his contract will terminate on the 11th July and so they'd be under no obligation to pay him after that anyway. 

i.e., - I agree with Loosehead, if we're understanding the facts the same way!!! :-)

MargeB is also correct to point out to watch what is said.  If he is going to risk breaching his contract, he could end up at the ET and then all this sort of thing will come up as evidence!

[smileyhappy]

Thanks for all your answers - so, regardless of him giving his months notice, is he not entitled to have his accrued holiday time paid out to him when he leaves?

[Loosehead]

Essentially he will still be employed until the 11th of August but as he is owed holiday he must take it before then. So most employers would not let him have the money instead.

[acw]

Indeed Loosehead!.  If as you say, his employment ends on the 11th July, how can he take leave from a job he no longer has!?!

[Kerplunk]

Did you lot actually read the question.  He gave notice on 10th July.  His employment ends on 11th August.  He doesn't want to take the leave he is owed but instead wants to work up until the 11th August and then be given the financial equivelant for any outstanding leave in his last pay.

[acw]

Yes - exactly.  He wants to terminate his employment on the 11th of July and then be paid by his former employer AFTER that date, to take leave AFTER that date, from a job that he will NO LONGER HAVE!!

If you have leave, you have to use it up WHILST STILL EMPLOYED.  Most companies do not offer cash in lieu of unused leave, but he will have to check his contract.  I would presume from the employer's actions that this is not an option in this case. 

I'm sitting in the employment department of a top law firm as I type this, but it doesn't take legal brain of Britain (which I am not claiming to be!) to work out that you can't go on holiday from a job that ended last week!!!

I understand why smileyhappy asked the question - it was not a stupid question.  But we did read it - and have offered accurate and useful answers. 

[Loosehead]

What acw said.

Yes Kerplunk we read the question, did you read the answers?

[acw]

Loosehead - two against one is enough for the tribunal! :-) :-p

Kerplunk - honestly I have thought about this carefully, and I'm sure that Loosehead has too.  When answering these sorts of questions it's very important to be careful and thorough - we both appreciate that, believe me!!

[MargeB]

He still does have the job. Tendering a resignation just means you're setting a date for termination of employment. In this case, it will be 11th August.

It'll need checking in the contract, but its probably an open and shut case: If you have holiday to take, the employer can just get you to take the holiday.

Take my word for it, I'm writing from a top London law firm. ok, so I've hacked their wireless lan from a cafe across the road, but that's neither here nor there...

[MargeB]

careful and thorough?

[smileyhappy]

Thanks everyone - I did not mean to start a war here hehe! I appreciate your straightforward answers as we are not too clued up on what's right and wrong in some of these situations. In my previous job, I was paid out my remaining holiday leave when I left (lucky me!) so thought I would check what the procedure exactly is so he knows where he stands :)

[acw]

Marge - as we understood he wanted to claim the holiday AFTER August 11th.  This would be AFTER his employment had terminated. 

Anyway - that was my advice, people can take it or leave it.  I'm glad you found it helpful smileyhappy - after all, you're the only one in a position to judge that.  :-)

[kempie]

I think some of the confusion comes from acw using 11th July as the termination date in her previous posts.

[MargeB]

That's not what I understood it to mean at all. Am I just being really thick here? Did he not mean that resignation was tendered 10th July, for termination 11th August, and the plan was to work out the notice. The company now want him to take holiday during the notice. That's not the same as asking him to take holiday after his employment has ended. It seems pretty obvious that he would be 'on leave' from the company anyway once he is no longer working for them after 11th August.

[acw]

Kempie - well pointed out!  That was a complete typo - I meant that it would terminate on 11th August! Ooops!  Sorry if that caused confusion. 

MargeB - as I see it you're right for the first 5 and a half lines of your post.  However, it's not being suggested that THEY asked HIM to take leave after 11th August, but that HE asked THEM for that right!  They are denying him that, seemingly for the reason you yourself gave! :-) Does that make more sense?

[acw]

In my last post - where I wrote "leave" please read "paid leave".  Then it might make sense!!!

[MargeB]

I can't find anything that mentions taking leave after 11th August. smileyhappy, is that what he wants? leave after he leaves?

[MargeB]

they're sitting discussing this, unaware that its being thrashed out on a public forum. lol.