Holiday pay claim

[Lance]

Do you think representing yourself is a good idea? Have you had guidance from a solicitor to at least make the argument you are going to propose? I ask as I've recently been to small claims court and took legal advice in the form of a letter to the other party highlighting what the sitaution was and there was quite a bit in there I hadn't considered. They didn't take legal advice and I absolutely destroyed them in the hearing using the evidence from my solicitor. I had all the legal terms, reference to legislation etc where they just mumbled on about T&C's and not fair.

Not sure if tribunals are different but in a legal environment the letter of the law is king. Unfair doesn't cut it normally. I actually lost my claim on a single sentence in their T&C's which went against all the evidence I put but it was there and the judge picked on that wording alone irrespective of fair, dodgy practices by the other party and complete lack of a clue what they were doing. Very frustrating but that's how the law goes.

If you go in there without quoting all the legislation and just complain it's not fair the other party is gonna rip you a new one and you won't be able to respond in kind.. that is, unless a tribunal is vastly different from a small claims.



This bit for example. If they state it's out of time and quote a legislation which is black and white then 'simply unfair' just won't cut the mustard. Also what you think is reasonably practible often doesn't matter when the other party is quoting the letter of the law so you have to respond with similar. Court's just don't do 'unfair' unless you go up the chain that spend more time on the scenario rather than a quick fix and away you go.

When you say 'you think' are you both not required to send the other party all your documentation and evidence so you can prepare arguments? You do in a small claims.

Do you know the legislation and basis for your arguments to counter theirs or has a solicitor outlined your situation in detail to fight it?

After just been through a legal process I just can't help thinking looking at your last post that you aren't prepared and might be in for a surprise. Obviously I don't know all the documentation and reseach you've done but from what you've put I feel I have to ask.

+1 to not representing your self.
Seek legal advice immediately. Depending on the size of the claim you are more likely to end up with a settlement and not go to court if you have professional guidance.
And don't use any no win no fee cowboys. Find a decent sized reputable firm who specialise in employment law.

[northernladuk]

Do you think representing yourself is a good idea? Have you had guidance from a solicitor to at least make the argument you are going to propose? I ask as I've recently been to small claims court and took legal advice in the form of a letter to the other party highlighting what the sitaution was and there was quite a bit in there I hadn't considered. They didn't take legal advice and I absolutely destroyed them in the hearing using the evidence from my solicitor. I had all the legal terms, reference to legislation etc where they just mumbled on about T&C's and not fair.

Not sure if tribunals are different but in a legal environment the letter of the law is king. Unfair doesn't cut it normally. I actually lost my claim on a single sentence in their T&C's which went against all the evidence I put but it was there and the judge picked on that wording alone irrespective of fair, dodgy practices by the other party and complete lack of a clue what they were doing. Very frustrating but that's how the law goes.

If you go in there without quoting all the legislation and just complain it's not fair the other party is gonna rip you a new one and you won't be able to respond in kind.. that is, unless a tribunal is vastly different from a small claims.

Gowlings are also (I think) arguing that the claim is "out of time" even if it was Unlawful Deduction from Wages. I think that this is inequitable (simply unfair) as I made the claim as soon as I was aware of the issue. I consider that it was not "reasonably practicable" for me to bring my claim within the three months usually required, meaning that my claim can still be heard despite it being outside the three-month period.

This bit for example. If they state it's out of time and quote a legislation which is black and white then 'simply unfair' just won't cut the mustard. Also what you think is reasonably practible often doesn't matter when the other party is quoting the letter of the law so you have to respond with similar. Court's just don't do 'unfair' unless you go up the chain that spend more time on the scenario rather than a quick fix and away you go.

When you say 'you think' are you both not required to send the other party all your documentation and evidence so you can prepare arguments? You do in a small claims.

Do you know the legislation and basis for your arguments to counter theirs or has a solicitor outlined your situation in detail to fight it?

After just been through a legal process I just can't help thinking looking at your last post that you aren't prepared and might be in for a surprise. Obviously I don't know all the documentation and reseach you've done but from what you've put I feel I have to ask.

[AliGrm]

Thank you for all your thoughts on this subject. It is sad that this does not seem to be an isolated case, and that other Umbrellas seem to be treating their employees in this way.

My Umbrella is RGF STAFFING UK LTD formerly known as ADVANTAGE RESOURCING UK LTD. I can't find them on FCSA (an organisation that is new to me). I was working at MOD and the Umbrella are on the Defence Business Services framework and so I was put with them. I think Public Sector Resourcing are in there somewhere too. MOD/DBS have said that this claim (for Unlawful Deduction from Wages) is nothing to do with them and that I need to take it up with the Umbrella.

I worked for three and a bit years and it was only during the third year that I discovered I had to be filling in their form to get paid every time I took a day holiday. As a result during the third year I did fill in the form and get paid holiday pay.

My claim is for the first two years where I was unaware of the need for the form (as I had not been told about it) and I assumed that (like normal employment) holiday pay is wrapped into regular pay amounts and regular pay process. I took the holiday and recorded that using the Fieldglass timesheet system, so the Umbrella were aware I was taking holiday and not paying me.

I have an Employment Tribunal date of 16th September and RGF/Advantage have employed Gowlings Solicitors to represent them at the Tribunal. I am representing myself on the Tribunal.

My claim is that RGF/Advantage were aware I was taking holiday, I took all actions I could practically do and that they should have been paying me - I made the claim as soon as I was aware (that I was not being paid), and I consider that their non-payment amounts to "Unlawful Deduction from Wages" in Law.

Gowlings are (I think) arguing that RGF/Advantage had no obligation to pay as I did not notify them using the correct form (ie the form that they had not told me about).

Gowlings are also (I think) arguing that the claim is "out of time" even if it was Unlawful Deduction from Wages. I think that this is inequitable (simply unfair) as I made the claim as soon as I was aware of the issue. I consider that it was not "reasonably practicable" for me to bring my claim within the three months usually required, meaning that my claim can still be heard despite it being outside the three-month period.

Any further thoughts or guidance appreciated on the lines of argument, or any precedent / comparable cases....?

[eek]

I felt that others had the right advice to give. I was more reassuring the OP that it wasn’t silliness that got them in this position (which I felt was equally important). ?

My comment wasn't aimed at you, Cojak. It just seemed silly to say look at these threads Given that the OP is well beyond the state where everyone else got to and then gave up.

The issue here is that because this is (from a quick Google) the first case of this sort we really need a well prepared clear cut case that creates case law (Yes I know it's only an employment tribunal but decisions there impact future decisions) and I would prefer that we had clueful people ensuring the case was as clear cut as possible.

[cojak]

There are times when you really don't add value when try to post on every thread in the professional forums - this is definitely one of those times.

I felt that others had the right advice to give. I was more reassuring the OP that it wasn’t silliness that got them in this position (which I felt was equally important). ?

[northernladuk]

There are times when you really don't add value when try to post on every thread in the professional forums - this is definitely one of those times.

You win some, you lose some. It's a discussion forum, not a 100% get it right everytime forum. I learn as I post and think it's a fair question as I don't know if there is a difference. I learn from the answers so if you'd like to provide me with one I can learn a bit more and not do it again.

[eek]

I don't really understand that explaination of the situation but is this a case of agency workers being pushed in to unscupulous umbrellas that Cojak (I think) has posted about or is this a situation of a highly paid skilled contractor having to use an approved umbrella from FCSA?

There are times when you really don't add value when try to post on every thread in the professional forums - this is definitely one of those times.

[eek]

Hi all, I am pursuing a claim from my umbrella agency company for unpaid holiday pay (as unlawful deductions from wages) which has led me to an employment tribunal hearing now scheduled for September this year. When I received my payments (within IR35 on payroll) I assumed that holiday pay was included within my payments but it seems not as I was not told when I joined that I needed to fill in a form for each day off to be paid my holiday (rather than recording it on my timesheet). As a result I missed out on being paid 2 years' worth of payments for holiday pay and have claimed it back, but they are refusing to pay. Silly me one might say, but it just doesn't seem equitable that I wasn't paid what I had earned, because of a form and a process that I was never told of - has anyone else come across this?

In every other employment I have had, holiday pay is just included within normal earnings.

Right some actual advice (not in any real order as there is a ton of it).
1) Would you be good enough to name your umbrella - that would make things slightly easier and wouldn't create any problems here

2) I'm guessing this is an actual FCSA umbrella - as some need to steal holiday pay to cover the costs they pay to agencies to be on the agency's preferred supplier lists (PSL).

edit to add Professional passport does have rules over the payment process of holiday pay, FCSA don't for reasons that should be obvious from the statement above.

3) Did you start this case while working with the umbrella or after you left - as different rules apply.

4) You have started this within the appropriate time frames (i.e. within 3 months of taking an unpaid holiday or 3 months of leaving).

5) Check that the Holiday pay payment process was not documented in their handbook - I doubt it will matter if it is or isn't but be prepared for questions about it.

6) Have you had a lawyer or someone check what you put in the ET1 claim and any witness statements that the umbrella may be planning to use?

It's worth saying that there should be a whole heap of these cases coming forward but it's actually hard to claim the full amount as you can only go back 2 years max and then only if you can show no long (3 month) period without any holiday being taken as any claim would stop at that point (example below)

Suppose you were claiming today and your took "unpaid" holiday pay in June, April and January 2021, December and August 2020

then the claim will only go back to December 2020 as the August holday is more than 3 months previously (yep again unfair but that's the law)

Oh and finally - Good luck, if you need any advice PM me and I will try to point you in an appropriate direction - but you may wish to speak to

Temple Crawford - Professional Passport
Julie Kermode - iwork

James Poyser - offpayroll

as all of them would be as interested as we are in getting an appropriate result that could be used going forward.

[northernladuk]

To the OP. We've got a lot of threads on holiday pay. You might want to read through them and see if any seem similar to your situation. It might give you some answers and if you can show us which one it is we might be able to comment further on your situation.,

https://www.google.com/search?q=holi...hrome&ie=UTF-8

If it is an FCSA registered company this thread might be a useful start https://forums.contractoruk.com/umbr...day-pay-2.html

But have a read through the rest and see if anything rings as similar to your situation.

[northernladuk]

Hi all, I am pursuing a claim from my umbrella agency company for unpaid holiday pay (as unlawful deductions from wages) which has led me to an employment tribunal hearing now scheduled for September this year. When I received my payments (within IR35 on payroll) I assumed that holiday pay was included within my payments but it seems not as I was not told when I joined that I needed to fill in a form for each day off to be paid my holiday (rather than recording it on my timesheet). As a result I missed out on being paid 2 years' worth of payments for holiday pay and have claimed it back, but they are refusing to pay. Silly me one might say, but it just doesn't seem equitable that I wasn't paid what I had earned, because of a form and a process that I was never told of - has anyone else come across this?

In every other employment I have had, holiday pay is just included within normal earnings.

This isn't 'normal employment'. It's weird arrangement with a 3rd party to appears the tax man and it under fire from various sides for different reasons. Holiday pay being one of them.

Can you tell us what the explaination from the brolly for not paying it is? Is the brolly FCSA registered?

I don't really understand that explaination of the situation but is this a case of agency workers being pushed in to unscupulous umbrellas that Cojak (I think) has posted about or is this a situation of a highly paid skilled contractor having to use an approved umbrella from FCSA?

Ah. It was Cojak in this thread, which the OP might want to read. https://forums.contractoruk.com/umbr...a-threads.html

[cojak]

Good for you, I hope you get your money. Some of these umbrellas are crooks when it comes to holiday pay.

Let us know how you get on.

[AliGrm]

Hi all, I am pursuing a claim from my umbrella agency company for unpaid holiday pay (as unlawful deductions from wages) which has led me to an employment tribunal hearing now scheduled for September this year. When I received my payments (within IR35 on payroll) I assumed that holiday pay was included within my payments but it seems not as I was not told when I joined that I needed to fill in a form for each day off to be paid my holiday (rather than recording it on my timesheet). As a result I missed out on being paid 2 years' worth of payments for holiday pay and have claimed it back, but they are refusing to pay. Silly me one might say, but it just doesn't seem equitable that I wasn't paid what I had earned, because of a form and a process that I was never told of - has anyone else come across this?

In every other employment I have had, holiday pay is just included within normal earnings.