# Payment for holidays not taken



## Margie (20 Dec 2007)

Can you ask to be paid for holidays accumulated over a couple of years.


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## MsGinger (20 Dec 2007)

You can certainly ask, but depending on what your terms of employment state, your company may not have to pay you for untaken holidays from previous years.  Some companies have a "use them or lose them" policy.  Companies are not required to carry over unused holidays from one holiday year to the next, but it can be arranged where the employer and the employee agree and the holiday leave is taken within the first 6 months of the following year.

Where I work, if you have untaken leave by the end of the holiday year, which is Jan-Dec, any untaken leave is paid with the last paycheck.  We do not allow holidays to be carried over.  

Having said all that, it is the employer's responsibility to ensure that every employee takes their full minimum annual leave entitlement each year, which is a minimum of 2 weeks after 8 months worked.  If they do not, an employee can complain to the Rights Commissioner or the Labour Court.


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## bigchicken (20 Dec 2007)

Are you asking to be paid for your holidays instead of taking them?

Then no is the short answer.  It is illegal under the Organisation of working time act for an employer to pay you instead of you taking the leave for the minimum statutory leave (20 days for FT employees). I'm not sure about the legalities if you get more than 20 days leave, i.e if you get 25 days leave can you take the 20 days and then get paid for the 5. 

The only exception to this is if you leave the company.


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## Margie (20 Dec 2007)

Thank you.  I'm actually asking for someone else with whom this conversation took place last night and I said who better to ask than AAM!  The person has 28 days holidays per year.  They are allowed to carry over extra days.  He has 8 days from this year and 8 from the year before.


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## Conshine (20 Dec 2007)

Margie said:


> He has 8 days from this year and 8 from the year before.


 
Some companies have a policy where carried over holidays from the previous year must be taken within X month sthe following year. He should check his employment contract.


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## Margie (20 Dec 2007)

There is no employment contract. It actually boggles my mind how many people I know that don't have contracts of employment or conditions of employment.


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## ClubMan (20 Dec 2007)

Margie said:


> There is no employment contract.


There may be no explicit/written contract but de facto there is a contract in such circumstances.


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## shipibo (20 Dec 2007)

Margie said:


> Can you ask to be paid for holidays accumulated over a couple of years.


 

You can ask anything you want, as long as you can accept an answer you don,t want to hear.

In short, tell them to ask.


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## ClubMan (20 Dec 2007)

*CitizensInformation - Annual leave *


> *Annual leave and leaving employment*
> 
> It is illegal under the Organisation of Working Time Act, 1997 for an employer to pay an allowance in lieu of the minimum statutory holiday entitlement of an employee unless the employment relationship is terminated.


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## csirl (20 Dec 2007)

> The person has 28 days holidays per year. They are allowed to carry over extra days. He has 8 days from this year and 8 from the year before.


 
It would depend on how long they are allowed to carry the extra days. In general terms, if the person would still be entitled to use the days, then s/he is entitled to be paid for them on ceasation of employment.


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## ClubMan (20 Dec 2007)

You can agree payment in lieu of holidays in excess of the statutory minimum but getting paid for any of your statutory minimum is illegal other than when leaving.


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## RainyDay (21 Dec 2007)

Margie said:


> Thank you.  I'm actually asking for someone else with whom this conversation took place last night and I said who better to ask than AAM!  The person has 28 days holidays per year.  They are allowed to carry over extra days.  He has 8 days from this year and 8 from the year before.



It may also depend on whether he asked to take the holidays and was refused (i.e. the employer's problem) or simply never asked (his problem).


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## bacchus (21 Dec 2007)

ClubMan said:


> There may be no explicit/written contract but de facto there is a contract in such circumstances.


 
In such a case, how can employee check company policy regarding carrying over of holidays ?


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## ClubMan (21 Dec 2007)

Predecent?


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## bacchus (21 Dec 2007)

What do you mean?


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## ClubMan (21 Dec 2007)

What has happened in the past in relation to such matters? In the absence of a written contract (which an employee is legally entitled to and an employer legally obliged to issue by the way) this would be significant in deciding what the de facto policy was on such matters.


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## Samantha (21 Dec 2007)

In my work, if you don't take your holidays, you loose it. The only time, they will paid it is if you leave the company


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## Black Sheep (22 Dec 2007)

What about "custom and practice". In the absence of a contract this can be used


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## ClubMan (22 Dec 2007)

bacchus said:


> In such a case, how can employee check company policy regarding carrying over of holidays ?





ClubMan said:


> Predecent?





Black Sheep said:


> What about "custom and practice". In the absence of a contract this can be used


That's what I meant by "precedent".


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## shipibo (23 Dec 2007)

"Custom and Practice" is a term you would use in a labour court proposal, their may have been unique circumstances that led to one payment, that will not be used in another.

He can be paid, but why has,nt he asked employer if they will, they have no obligation, and could tell him to take any 16 days of their choice if needs be.


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## Purple (25 Aug 2014)

I know this is an old thread but what happens if the employee doesn't want to take their 20 days? Can they then be paid in lieu?


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## DB74 (25 Aug 2014)

Purple said:


> I know this is an old thread but what happens if the employee doesn't want to take their 20 days? Can they then be paid in lieu?



No - it's illegal

Employer must insist that the employee takes their annual leave


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## Purple (25 Aug 2014)

DB74 said:


> No - it's illegal
> 
> Employer must insist that the employee takes their annual leave



That's my understanding but I can't see the specifics in the Working Time Act.


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## Sunny (25 Aug 2014)

DB74 said:


> No - it's illegal
> 
> Employer must insist that the employee takes their annual leave



That only relates to the statutory amount of leave.


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## AgathaC (26 Aug 2014)

This is from Citizens Advice, I came across it while checking something for a colleague, in the context of getting paid for holidays where they are leaving a job.

*It is illegal under the Organisation of Working Time Act, 1997 for an employer to pay an allowance in lieu of the minimum statutory holiday entitlement of an employee unless the employment relationship is terminated.*


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## STEINER (27 Aug 2014)

I know an individual who does get payment in lieu for full statutory annual leave.  Employee and employer are ok with this and ignore the illegality.  Unless one party is coerced, surely there is no problem apart from the illegality!


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## DB74 (27 Aug 2014)

STEINER said:


> Employee and employer are ok with this and ignore the illegality.  Unless one party is coerced, surely there is no problem apart from the illegality!



I agree with you which maybe says more about Irish culture than anything else!

IMO the employer is the one taking a chance here as the employee could in theory take a case and claim that they wanted holidays but the employer refused and paid them instead.

The onus is on the employer to ensure that all employees take their annual leave each year so once they know they are taking a chance with it then it's on their own head

Incidentally I have heard a fair few anecdotal stories where incidences of fraud by employees etc only come to light when the perpetrator takes their annual leave and someone else does their job and then discrepancies are discovered so employers should bear that in mind too.


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## fobs (27 Aug 2014)

DB74 said:


> I agree with you which maybe says more about Irish culture than anything else!
> 
> IMO the employer is the one taking a chance here as the employee could in theory take a case and claim that they wanted holidays but the employer refused and paid them instead.
> 
> ...


 
This happened in our workplace twice (good many years ago) One employee never took a lunch break even but was caught defrauding when on maternity leave and another senior guy (large defrauding) when his mother died suddenly. This happened in a large firm and was undeteced by auditors.


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## mathepac (27 Aug 2014)

Joe employs me as a van-driver and pays me for 52 weeks in the year, 4 of which are paid holidays. If I don't take my holidays, which Joe has already paid me for, why would that entitle me to 56 pay days? It's nuts!


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## SparkRite (27 Aug 2014)

mathepac said:


> Joe employs me as a van-driver and pays me for 52 weeks in the year, 4 of which are paid holidays. If I don't take my holidays, which Joe has already paid me for, why would that entitle me to 56 pay days? It's nuts!




Not nuts at all.

Joe has paid you to actually work 48 weeks for him, and then during your holidays you decide to work for Joe and so he pays you for those four weeks as well. Its still actually only 52 "pay days" but you are paid double for four of them.

Easy peasy.


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## mathepac (27 Aug 2014)

SparkRite said:


> ...  Easy peasy.


Not really, read my post again. You are making a different point.


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## SparkRite (27 Aug 2014)

mathepac said:


> Not really, read my post again. You are making a different point.




I've read and re-read it again, but can't see anything new in it, where are you getting the entitlement to 56 pay days from ?

Did some one say that in another post, that I missed?


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## Leo (28 Aug 2014)

SparkRite said:


> I've read and re-read it again, but can't see anything new in it, where are you getting the entitlement to 56 pay days from ?
> 
> Did some one say that in another post, that I missed?



52 pay days as such, but 4 of them would be double.


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## Leo (28 Aug 2014)

mathepac said:


> Joe employs me as a van-driver and pays me for 52 weeks in the year, 4 of which are paid holidays. If I don't take my holidays, which Joe has already paid me for, why would that entitle me to 56 pay days? It's nuts!



Joe is legally obliged to pay you for the 4 weeks paid holidays. If you choose to work during this time, unless Joe pays double for that period, you are effectively working for free. All probably fine so long as both parties are happy with that arrangement. But Joe is taking a big risk, and you to a lesser extent in case there was something like a workplace accident where an insurance company could refuse to cover an incident for an employee who was supposed to be on vacation.


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## SparkRite (28 Aug 2014)

Leo said:


> 52 pay days as such, but 4 of them would be double.




Yeah Leo, that's what I was saying as well, but apparently I'm missing something...........??


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## mathepac (28 Aug 2014)

Leo said:


> 52 pay days as such, but 4 of them would be double.


Why would or should they be double? Joe already pays me for them via the 52 pay days per annum. If I choose to work rather than holiday, how does that create an additional  4 weeks pay liability for Joe?


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## DB74 (28 Aug 2014)

mathepac said:


> Why would or should they be double? Joe already pays me for them via the 52 pay days per annum. If I choose to work rather than holiday, how does that create an additional  4 weeks pay liability for Joe?



Because you get paid twice

Once for actually working those days
Once in lieu of not taking paid days off


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## Purple (28 Aug 2014)

So if an employee doesn't want to take his or her holidays they must be forced to do so.
What business is it of the state to interfere with someone's personal choice to work?
I can understand if the employer tries to stop the employee taking leave but if neither party wants the holiday then why force them?


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## mathepac (28 Aug 2014)

DB74 said:


> Because you get paid twice ...


Why? Based on what rule? The legislation says I must take the holidays. What legislation says I get paid twice if I don't? How does Joe get embroiled in paying me extra for *not* doing what is demanded of me i.e. ignoring the law?


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## SparkRite (28 Aug 2014)

mathepac said:


> Why? Based on what rule? The legislation says I must take the holidays. What legislation says I get paid twice if I don't? How does Joe get embroiled in paying me extra for *not* doing what is demanded of me i.e. ignoring the law?



Ahh come on now Mathepac, this begs the question, are you trolling or being deliberately obtuse??


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## markpb (29 Aug 2014)

Purple said:


> So if an employee doesn't want to take his or her holidays they must be forced to do so.
> What business is it of the state to interfere with someone's personal choice to work?
> I can understand if the employer tries to stop the employee taking leave but if neither party wants the holiday then why force them?



I'm guessing the law is there because an employee being forced not to take their holidays is also unlikely to defend their rights against their employer. ie rather than have the employee prove bullying, they force the employer to prove it wasn't.


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## Purple (29 Aug 2014)

markpb said:


> I'm guessing the law is there because an employee being forced not to take their holidays is also unlikely to defend their rights against their employer. ie rather than have the employee prove bullying, they force the employer to prove it wasn't.



I agree that that's the reason but should the state take away one persons freedom in order to ensure another's?


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