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Case Notes: Success story – payment of outstanding time off in lieu

Richard Wilde recall a recent victory he secured as an HCSA National Officer

A recent HCSA victory highlights why it is always good to know your rights and, if in doubt, contact your National Officer.

In this case, we assisted a member seeking payment for unspent annual leave after changing employers.

The member in question had resigned from his previous Trust to begin employment with a new NHS Trust.

His former employer had failed to pay him for nine sessions which were part of his annual leave allocation – amounting to over £2,000.

The Trust initially refused the members’ requests for payment, stating that it was their policy not to pay outstanding time off in lieu and that they would need to be worked.

Because the member had not asked or been available to work those extra sessions, the Trust was not prepared to pay out.

As soon as HCSA became involved we objected. We asked to see the policy in place, but the Trust refused to elaborate. Its HR department reiterated its position and refused to reply further.

I then made very clear the legal basis.

Annual leave is defined as “wages” by the Employment Rights Act 1996.

The definition of wages in section 27(1)(a) of the Act describes wages as including “any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise.”

To maintain a Trust policy which states: “You did not ask for payment in lieu, therefore we cannot pay you” is therefore unlawful.

On top of this are the provisions of Working Time Regulations 1998 Regulation 14 regarding compensation related to entitlement to leave.

It states that “where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave.”

This stands as a clear case revealing how Trust HR departments will simply try to pass off as a matter of policy a point which is absolutely unlawful.

Our advice to members is not to accept either excuses or silence from their HR officials, but to contact HCSA to resolve these matters.