Overtaken holidays

[OTS]

Hi. I'll keep this simple. I was made redundant in August last year. Around 2 months later my ex employer sent me a letter saying I owed them £300.00 for overtaken holidays. They have since reduced this figure to £160.00 as the first amount was an error on their part.

 

I have checked my contract of employment and it does say they can deduct any overtaken holidays from my final salary. The fact is they failed to deduct the amount they now say I owe them. My query is that If the contract says they can deduct from my final salary but don't, then can they pursue me for this amount?

 

Thanks

 

Ots

[lbruk]

I believe they can yes.

[Emmzzi]

In short, yes.

[OTS]

Oh bugger. Dya think they'll accept £5 per month?

 

Thanks

[Emmzzi]

if you are still unemployed yes. otherwise no.

[OTS]

I don't know if this is relevant. I issued a claim before the ET which I later withdrew. It appears from the documents I have that my employer issued a counter claim in relation to the overtaken holidays. The Judge directed that he couldn't consider their claim as I had not made a breach of contract claim.

 

I'm no expert but if they were to pursue me in court couldn't I argue abuse of process due to the fact the case was previously litigated in the ET (Issue estoppel).

 

Any advice appreciated

 

Ots

[Emmzzi]

no, if you owe it, you owe it.

[Sidewinder]

They will have to accept precisely what you are in a position to pay them!

 

If they proceeded to litigation it would be a County Court claim, not a Tribunal claim, and if you were able to prove that you had made a reasonable offer in line with your circumstances, and they had rejected this, it would not look good. Also, estoppel could easily be a factor purely on the basis that you believed in good faith that you were entitled to the money as part of your settlement and that you spent it!

[becky2585]

I don't think estoppel would apply here. The counter claim was dismissed as the tribunal didn't have jurisdiction to hear it. It wasn't dismissed because it had no merit, so they may well be able to pursue you in the county court.

 

What you don't need is a county court judgment on your credit record, as that's bad news. I'd be approaching them and offering to pay back a reasonable amount each week. Maybe £10. If you issued ET proceedings against them, though, my concern is that they may issue against you anyway out of pure spite! If there's any way you could borrow the money to pay back, I'd recommend doing that just to save your credit record.

[OTS]

I have just read this case re estoppel.

 

Estoppel Employment: Barber -v- Staffordshire County Council [1996] ICR 379 [1996] IRLR 229

 

A dismissal of a claim without consideration by the tribunal created an issue estoppel. Issue estoppel rules apply equally to Industrial Tribunal decisions as elsewhere. Surley this means if the Councils claim was dismissed because the judge did not consider it estoppel applies. Any views please.

[becky2585]

That case was WITHDRAWN, and so couldn't be pursued elsewhere (also due to being passed the limitation point), whereas your employers claim was brought in the wrong court altogether, so no estoppel.

[OTS]

Oh bugger. Guess I'll have to make em an offer.

 

Thanks

 

Ots