Changing employment, leave entitlement and notice periods

Some assistance from the hive mind please?

My wife is changing her job after a dissatisfying time at the company she was transferred to following a takeover and TUPE.

Her contract states a 3 month notice period.

For various reasons including accrued leave following maternity leave, she has a considerable amount of annual leave, such that she would effectively be able to leave approx 3 weeks earlier than this.

She has a date which her new employer would like her to start and this is easily possible given the above.

The partner in her current firm wants to pay her to work some of her leave, such that she would not be able to start her new job on their requested date, but a week later.

My wife is reluctant to do this as she would prefer a couple of days off with our son, then start the new job on their proposed date. She is however prepared to forego the few days off but wants to start the new job on time.


(A) Can anyone confirm that she is within her rights to refuse to work any of the leave (albeit paid for)?

(B) Could her current company be vindictive and force her to "spread out" the remaining leave over her notice period such that she'd have to start the new job later anyway rather than use the leave to bring forward the end employment date?

Most of the time, when you hand in your notice any accrued leave is given to you and you aren't required to spread it out. There is probably a legal / employment law position on this but in most instances it is worked out between the parties. If your wife is and has been unhappy then why prolong it?

From what you've said, if it were me, then I'd hand in my notice including a date for my last day and say thanks very much.

All depends on the terms of her employement contract. Some firms dont allow you to take annual leave during your notice period unless its already booked. This was teh official stance from my previous employer but as a goodwil gesture they were flexible about it.

If you have accrued leave then you cannot be forced to work it.

In leu of a specific contact term to the contrary, You need to give reasonable notice of leave - normally a period equal to the length of time to be taken, so 15 days here. This is the same period which an employer can normally cancel leave in.

If you were to give this reasonable notice then refusal could only be withheld on reasonable grounds - I.e. out leaving the firm short staffed.

If you play fair to the above rules then she will be fine. What are they going to do about it? Take her to a tribunal, thst quill find she acted fairly and openly...

Just make sure you do whatever in writing!

Most of my previous employers would not have allowed any leave to be booked after giving notice, but they would honour any prebooked/authorised leave - hence lots of people had holidays agreed and then resigned.

I have no idea what UK law might say, but the government site simply says you “may” be able to take leave during your notice.

Without getting into specifics, im pretty sure that they're asking her to do this to alleviate staffing and management problems - if these had been addressed properly my wife wouldn't be leaving.....

While my wife would rather leave amicably, the firm partner is I feel trying it on - and unfairly so - as he knows that my wife has a preferred date to start her new position.

I think it will have to be a written letter notifying them that she wishes to take remaining leave at the end if her employment period. We'll have to try to work out her exact leaving date given her entitlement pro rata fir the remainder of the holiday year.

Nice way to treat your staff I'm not surprised she's leaving. I think in the first instance this comes down to personalities and egos of the management rather than the letter of the law. Your wife is in the best position to judge this. Certainly would seem to me that trying to "make" someone work for your company/business who doesn't want to be there could be very bad judgement.

I resigned ftom one role I’d been in for just shy of 10 years . When my employer finally woke up they offered me more money to stay: the same amount I’d asked for and been denied which had partly spurred me to find another job in the first place.

When I told my employer that I had already accepted a new position with a new employer and that I had not merely been bluffing to get a pay rise they changed tact.

They hit me with a three month notice period as I would have gone past 10 years service in my 4 week notice period ( which is of course complete BS). They said if I didn’t give them 3 months notice I would be in breach of contract.

So I politely informed them in that case I might as well leave that day and give them zero notice and be as in breach for 4weeks as for 3months.

At the time we had a delivery deadline on a project I was one of the senior creatives and personally responsible for creating about 1/3 of the delivery. So they gave in and accepted the 4weeks notice period. To be fair to them they paid me out on my holiday time and gave me a champagne goodbye party.

Then there was the time on one of my first jobs when they expected me to train up my replacement after I quit (due to them demanding I work 5 days a week and rota in for weekend cover with zero overtime for the weekends when they were charging clients extra to have me available on weekends).

They were told in no uncertain terms to get twisted when they suggested that ( they had given me zero training when I started) . The amusing thing was my replacement didn’t even last through my 4weeks notice.

If you resign and have accrued holiday, they do not have to let you take it in your notice period. Of course notice periods are for a reason and usually they will need that time to recruit a replacement and potentially a handover in an instance such as this. I don't think the partner is being awkward here. Yes, companies can be flexible - and we are at times with our staff, but if one of our staff resigned and had 2.5 months accrued leave (I would not let that happen in the first place!), then I would probably not allow them to take that during their notice for operational reasons as explained above. (Contracts usually have a clause stating how holiday needs to be requested / approved (or the employee handbook); in this case would be no different - the employee would need to request it - and given it would be 2.5 months in succession - it would maybe be refused!)

If you give them a leave date and they tell you unreasonably that you are in breach of contract, tell them to write tonyou about it afterwards

As long as new employer is aware that your current one is being a tit you really can’t be in any trouble

I’ve given notice on the day and walked out once
No issues and got sorted

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Originally Posted by Boss13

If you resign and have accrued holiday, they do not have to let you take it in your notice period. Of course notice periods are for a reason and usually they will need that time to recruit a replacement and potentially a handover in an instance such as this. I don't think the partner is being awkward here. Yes, companies can be flexible - and we are at times with our staff, but if one of our staff resigned and had 2.5 months accrued leave (I would not let that happen in the first place!), then I would probably not allow them to take that during their notice for operational reasons as explained above. (Contracts usually have a clause stating how holiday needs to be requested / approved (or the employee handbook); in this case would be no different - the employee would need to request it - and given it would be 2.5 months in succession - it would maybe be refused!)

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We're talking about 9 days here, as she's already booked a few days off over September and October and by my rough calculations even if they paid ALL the leave she'd be leaving on December 7th. I don't think any employer could be seen as "reasonable" to refuse a 9 day leave period in the quietest month for leave (November). The company is short staffed permanently due to horrenedous retention issues, with working unpaid hours to meet deadlines the norm - claiming short-staffing doesn't wash either.

My advice is as always get some proper professional advice rather than vague answers on a forum and if your household insurance has legal? it is a start if not a few quid spent can save a lot later.

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Originally Posted by mart broad

My advice is as always get some proper professional advice rather than vague answers on a forum and if your household insurance has legal? it is a start if not a few quid spent can save a lot later.

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Good point, I'd forgotten that the home insurance included legal advice/cover. I'll give them a call also.

So, legal advice is:

• You are under no obligation to take leave paid unless you want to.
• Employer would have to demonstrate good reason to refuse to grant the leave at the end of the notice period e.g. that too many members of the team are on leave at the same time. Being generally understaffed would not be seen as good reason.
• Politely refuse and request in writing the leave period at the end of your employment period.

Personally, I really don’t think you have a leg to stand on. Even if you agreed to allow an employee to take leave, they would still be on notice and still employed during that period, and an employer can restrict you working for another/new employer when you are still an employee.

You are asking an employer to vary terms of notice due to accrued leave.

If if you are wanting to try and get something agreed by all means get some professional advice. It should give you a clearer picture of what rights you have - but I really can’t see the point, as it seems quite clear that your wife wants to leave before her official notice period, and unfortunately that is why there is a notice period. Even if they sent her home on gardening leave she wouldn’t officially be alllowed to work for someone else until the notice period was over.

The real issue here is your wife and new employer have come up with a date which takes no account of your wife’s contractual notice period.

You need to make sure you are asking the right question to get the right advice.

Good luck.

Your points don’t make sense.

How can you request leave at the end of your employment/notice period?

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Originally Posted by Scepticalist

So, legal advice is:

• You are under no obligation to take leave paid unless you want to.
• Employer would have to demonstrate good reason to refuse to grant the leave at the end of the notice period e.g. that too many members of the team are on leave at the same time. Being generally understaffed would not be seen as good reason.
• Politely refuse and request in writing the leave period at the end of your employment period.

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Correct. Accrued leave can be taken during a notice period unless the employer can demonstrate valid business reasons to ask for it to be worked. In this case there's no evidence of a valid business reason.

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Originally Posted by Omegamanic

Your points don’t make sense.

How can you request leave at the end of your employment/notice period?

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They seem to make sense to everyone else here except you.

You have a contractual notice period.
You also have leave entitlement in law which you are not obliged to take paid, therefore your employer is legally obliged to allow you to take the leave during the notice period (but the point below must be taken into account).
Your employer legally has to give good reason to refuse specific dates requested for that leave.
Due to the above they cannot arbitrarily tell you to take it at the start of your notice period, or refuse to grant it at the end of the notice period

I did forget to ask, so does anyone know if "3 months notice" would mean 12 weeks or 3 calendar months (in the absence of anything specifying this in the contract)?

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Originally Posted by Omegamanic

Your points don’t make sense.

How can you request leave at the end of your employment/notice period?

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It's normal practice when leave remains accrued, Scott. I'm not sure what you're confused about.

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Originally Posted by Boss13

...then I would probably not allow them to take that during their notice for operational reasons as explained above.

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Out of interest, what would you do if they ignored you and left on their preferred leaving date? They would be in breach of their contract, but what action would you take?

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Originally Posted by Omegamanic

Your points don’t make sense.

How can you request leave at the end of your employment/notice period?

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If I've understood correctly, it's not at the end or after, but more part of it, e.g. a 3-month notice period becomes 9 weeks if you take your accrued 3 weeks holiday during the notice period, and preferably at the back end of the notice period.

In this instance, the company would have to be a proper bunch of t***s to not allow the employee to leave 9 days early. Rather than the full 3 weeks, they could offer the 2 weeks holiday at the end of the notice period and pay the employee the 1 week holiday, which they will actually work.

To the OP like i said get some proper advice you can see from the way this thread is going why.

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Originally Posted by alfat33

Out of interest, what would you do if they ignored you and left on their preferred leaving date? They would be in breach of their contract, but what action would you take?

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My understanding is they would be able to state 'in breach of contract' in any reference they provide to a future employer which can cause potential problems for the ex-employee.

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Originally Posted by Scepticalist

I did forget to ask, so does anyone know if "3 months notice" would mean 12 weeks or 3 calendar months (in the absence of anything specifying this in the contract)?

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3 months is 3 (calendar) months.

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Originally Posted by Omegamanic

Personally, I really don’t think you have a leg to stand on. Even if you agreed to allow an employee to take leave, they would still be on notice and still employed during that period, and an employer can restrict you working for another/new employer when you are still an employee.

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This is quite an important point. If you're on leave, you're still employed by the employer you're on leave from.

Normally if people are using accrued leave to reduce their notice period, what you do is essentially waive the right to be paid for those leave days in exchange for reducing your notice period by the amount of waived days. As far as I'm aware, employers are not required to permit this, but it's common in many cases.

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Originally Posted by learningtofly

It's normal practice when leave remains accrued, Scott. I'm not sure what you're confused about.

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I'm not confused Tony.

There seems to be a misunderstanding from others in relation to being able to take leave during notice or not, and a belief that that somehow reduces the contractual notice period. As I understand it, regardless of whether you take leave or not, you are still under the full, contractual, notice period - unless otherwise agreed by the parties.

To clarify one of my previous posts - If you have worked your contractual notice period, then you are no longer an employee, and therefore would not be working any accrued leave (you would have left!). That is why that particular point makes no sense to me, But I'm glad it does for others :)

I'm off to make sure all our contracts absolutely require anyone giving notice to be obligated to giving the full notice - otherwise what's the point in having a notice period.

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Originally Posted by Onelasttime

If I've understood correctly, it's not at the end or after, but more part of it, e.g. a 3-month notice period becomes 9 weeks if you take your accrued 3 weeks holiday during the notice period, and preferably at the back end of the notice period.

In this instance, the company would have to be a proper bunch of t***s to not allow the employee to leave 9 days early. Rather than the full 3 weeks, they could offer the 2 weeks holiday at the end of the notice period and pay the employee the 1 week holiday, which they will actually work.

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I think OP's wife is leaving in the first place because the company is run by a proper bunch of t***s.

ACAS

http://www.acas.org.uk/index.aspx?articleid=1410