Leave changed due to miscalculation: ask the expert

I have worked for a local authority for 31 years, previously being employed on a term time only contract. In 2010 I changed my working pattern to 32hrs per week over four days, all year round. At this time I received a letter from the employer stating that this change constituted a permanent change to my contract and that my annual leave entitlement would be determined by my line manager. For the past four years I have received 26 days leave per annum (this has been pro-rated and includes a long term service award) and I have received bank holiday entitlement which has also been pro-rated.  I noticed that my leave, which is calculated in hours, has been reduced for this year without any notification or  consultation. When I queried this with personnel they informed me that my leave has been miscalculated for the past four years and the revised allocated hours reflected my actual entitlement, which after having the calculations explained, I do believe that the figure is accurate.  Is it acceptable that my holidays can now be reduced? I moved from term time only to all year round on the understanding that I would receive 26 days leave. I  cannot refer to my contract as the letter supersedes this and just states the entitlement is calculated by the line manager. After a period of four years can the employer just reduce my leave without any formal consultation process? I appreciate that the leave policy has to be fair for all employees. However, I genuinely did not know that they had been miscalculated and, given these details initially, I probably would have stayed on a term time only contract. However, they say that this is no longer an option.

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.

Comments [2]

  • Paul says:

    Something similar has happened to me. For over 8 months of my contract, it has stated that my holiday entitlement was 38 or 281hrs. Now they are saying due to human error it was miscalculated and it should have only been 162hrs.
    Are they able to do this? I want to leave and start a new job but the job starts before my notice finishes. However with my old holiday entitlement I could have used my holidays as part of my notice.

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