With holding pay after wrongful dismissal

[blue2]

Hi
Sorry it's a bit of a long story...

A couple of weeks ago I was sacked from a job I had been doing for 7 weeks as I phoned in sick. I was upset as I really enjoyed the job. But I was even more upset at the behaviour of my boss. When I phoned in sick he just shouted at me to get the shop now or I was sacked, I explained that I had dressed for work and was in my car but as I had a stomach bug I needed to be near a toliet and as I worked with food I couldn't get in. He sacked me over the phone then continued to call me and shout at me and put the phone down. I called a day later and explained that I needed to come in to the shop and collect a coat that I had left there and my wages including my holiday pay. I went in and he gave me my coat and said that he had prepared a note explaining what I was owed, as I was reading it he starting shouting at me again and banging his hands agaist his head calling me stupid. I felt very intimadated as he came lunging towards me and slamed the shop door in my face. I recieved my P45 and a cheque for 1 weeks work 10 days later. Since then I have spoken to the CAB and they said that I am owed holiday pay and a weeks wage as I was sacked without notice. I explained this in a letter to my boss which I hand deleivered 2 weeks ago and have not heard anything since.

Is the advice from the CAB correct and could anyone give me any futher advice on how to deal with this bully as he owes me over �300?

Thanks in advance

[Ethel]

Well after 7 weeks work, you are probably entitled to 1 and a half days holiday pay.

You are not entitled to any pay for the day(s) you were sick.

Did you work a week in lieu? Have you had that money?

[Postdog]

Not much consolation, but do you know, having read that, you are probably better off in the long run...

I have to agree with Ethel - I don't know what the legalities are, but come on, holiday pay when you have only been there seven weeks!

[blue2]

Yes, I got my week in lieu with my P45.

I've been told by an accountant who calculated how many hours I've done, I'm owed 3 days holiday.

Do you know if by law he should pay me for the week h sacked me without notice?

Thanks

[blue2]

I know what your saying Post dog, but I worked very, very hard there, and was told I would get holiday pay, after the way I have been treated it's more to do with principal.

[buildersmate]

The statutory minimum number of paid days leave per annum is currently 24. So by my reckoning you are owed 24*7/52 days holiday, which is 3.23 days. Convention says this is rounded up or down to nearest half, so I agree with 3 days. Ethel, you are so outstandingly good on this, please could you explain your 1.5 figure.
In addition, I agree that you should have been paid one week of notice, starting from the day you were unable to come to work. You are not paid notice if dismissal occurs because of gross disconduct; but that is not the situation here.

[kempie]

Paid holiday accrues from day one. No matter how short the period of employment, a worker has the right to be paid for leave accrued during that time.

The current statutory minimum paid annual holiday entitlement is 4.8 x days worked per week, therefore a person who works 7 weeks accrues

4.8 x (7 / 52) x workdays
or
0.646 x workdays

which for a five-day week is 3.23 days pay.

http://www.direct.gov.uk/en/Employment/Employe es/Timeoffandholidays/DG_10029788


The statutory minimum period of notice is one week if you've been continuously employed for between one month and two years, or one week for each complete year (up to a maximum of 12) if you've been continuously employed for two or more years.

http://www.direct.gov.uk/en/Employment/Redunda ncyAndLeavingYourJob/DG_10026689

[factor-fiction]

I understand the calculations for 3 days holiday but is it always that simple? Some firms base their holidays on completed months. So if Blue started in mid June and was dismissed early August maybe the employer is only counting July as a full month. That would give 2 days.
But also the 24 days includes bank holidays- so that's 16 days plus 8 bank holidays. The employer could say there were no bank holidays in the period so it's just the 16 holidays a year which matters- which works out at 1.33 a month.
I'm not sure whether the statutory minimum calculations allow for these complications.

Good luck anyway blue, but i think you are better off out of there.

[kempie]

The statutory minimum is the statutory minimum i.e. minimum in law... it is that simple.

Every day worked from your first day of employment counts toward your holiday entitlement.

Employers can use an accrual system to calculate how much leave a worker has built up during their first year of employment but this would be in excess of the statutory minimum. Under such an accrual system, leave is built up monthly in advance at the rate of one twelfth of the annual entitlement - this would mean 7 weeks work (= 2 months accrual) gives 4 days holiday.

Public and bank holidays do not count towards the 24 day paid entitlement.

[kempie]

Having re-read my final sentence, it comes across different to how I intended :-(

Public and Bank Holidays do not count as special days within the 24 day minimum entitlement - if you work a Bank Holiday, it is a work day; if you get a paid day off, it is part of your holiday.

It may be pertinent to know whether blue2 was dismissed before or after 4th August i.e. if after, was that day a workday or a holiday?

[factor-fiction]

Thanks Kempie. Yes, the 8 annual bank/public holidays are included in the 24 day statutory minimum

I think the point you are making is that if you work two months you are entitled to 2/12ths of the 24 days annual entitlement- i.e. 4 days.

Are you saying this applies whether you work October &November (when there are no bank/public hols so that gives you 2 other hols) or January/December where in England there are 3 bank/public hols (thus leaving you just one holiday).

Not sure about relevance of 4 August- is that a Scottish public holiday?.

[buildersmate]

I'll offer you my version since Kempie and I appear to be saying the same thing.
It's 7/52ths of 24 days - 3.23 days.
If a public holiday occurred over that period, and if the organisation was that stingey that it provided only the statutory minimum holiday of 24 days including public holidays, then it would be valid for it to deduct the number of public holidays taken by Blue2 in working out the residual days due. There weren't any in the last 7 weeks in England / Wales, which is why I didn't mention it.

[factor-fiction]

Thanks, I'm sure you're right. I just wasn't sure whether the etitlement was still at the rate of 24 p.a. even if the period worked (in my example 2 months, in blue's case 7 weeks) included no public/bank holidays. Thanks for clarifying that the rate of 24 pa figure applies for any period.

Incidentally, being pedantic but just out of interest , should the calculation here be 24 x 35 working days/261 working days- still gives a rounded answer of 3 in this case I know but might make a difference sometimes

[buildersmate]

I don't know the (statutory) legal answer.
I've had situations where pedants come to me armed with figures 'proving' I owe them 0.5 days of holiday because they have calculated it off some other basis. I merely turn around and say 'sorry, in this company we always calculate it in weekly buckets - it's policy and everyone is treated the same'.
But then most companies offer more than a minimum of '24 days including public holidays'.
If you'd ask me to guess what would happen if there was a legal claim for a statutory minimum, I would guess that courts would assess entitlement as calculated in whole weeks worked, simply because NI and PAYE is worked out in weekly buckets.