Leave changed due to miscalculation: ask the expert

I understand that you changed your working hours from term-time only to 32 hours per week over four days per week, all year round, around four years ago. At this point, you were notified that your annual leave entitlement would be determined by your line manager. For the past four years you have received 26 days’ annual leave pro rata’d, plus pro rata’d bank holiday entitlement. I understand that your annual leave entitlement has now been reduced for the holiday year 2014 – 2015 without any notification or consultation. You, however, state that, having had this explained to you, you consider that your revised entitlement is accurate.

Although I understand that you have no express contractual terms regarding the amount of annual leave that you are entitled to, you could argue that by promising you a certain amount of annual leave and by allowing you to work under these arrangements for four years, this has by implication become part of your contractual terms and conditions of employment. Even though your employer states that it has wrongly calculated your annual leave entitlement, you can argue that your employer offered you the original amount of annual leave and you accepted this and worked under these arrangements for four years and there is therefore a valid contract between your employer and you for the original amount of annual leave. This is the case even though a mistake seems to have been made. You have acted upon the information given to you in accepting the job and you have received a set amount of holiday for four years.

On this basis, you could argue that any attempt to change your annual leave without your consent is a breach of contract. If your employer unilaterally changes your terms and conditions of employment without your agreement to this, you would therefore have a claim for breach of contract and you may also be able to resign and claim constructive unfair dismissal, although we would always advise you to take further legal advice before resigning from your employment. If your employer does attempt to change your annual leave entitlement, I would advise you to make your objections to this proposal clear and to raise a grievance stating that you believe that your employer is attempting to change your contract without your consent and that you consider that this constitutes a breach of your contract of employment. You should make it clear that you do not agree to the proposed change in your annual leave and that you wish to retain the amount of annual leave you have had over the past four years.

Please bear in mind that if you do not agree to the change in your annual leave entitlement, your employer may decide to dismiss you and offer re-engagement on the revised annual leave. If your employer decides to follow this course of action, it is likely that a tribunal would find that the reason for your dismissal was the potentially fair reason of ‘some other substantial reason’. However, you may have an unfair dismissal claim, depending on the procedure your employer follows in effecting your dismissal. For example, in order to avoid a finding of unfair dismissal against it, your employer would be expected to have given you reasonable notice of the proposed changes and must have undertaken reasonable and genuine consultation with you.

Any claim for unfair dismissal or constructive unfair dismissal must be submitted to the employment tribunal within three months of the date of your dismissal, or, in the case of constructive unfair dismissal, from the date of your resignation.

 Sarah Calderwood assisted in the preparation of this answer.

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