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Not really and answer to your questions, but my contribution would be take the hit and move on swiftly.
Stuff like this can eat away at you if you let it. The stress, expense, bad feeling etc that trying to take an ex-employee to court over a breach of notice period would bring would really not be worth it IMHO
A couple of points;
He will have accured a min of ~ 7days holiday entitlment (28/12) * 3 (for Mar, Aprl & may), so you have overpaid him by 3 days?
You may struggle to reclaim this depending on the wording in your contract of empoylment. It must have a statement, agreed to, that allows an employer to reclaim monies. If not you are down to his good nature to do so. If you try any other means, he could turn the tables on you with a constructive dismissal claim.
However, the rules changed last month, balancing the power an employee has had to take an employer to a Tribunal (now they have to go via ACAS and potnetionally pay a 4 digit sum in advance to stop frivolous claims)
You will almost certainly be unssucessful in trying to sue an employee for breach of contract (again, unless it is explicit in his contract). It is unlikely any Tribunal judge will award potential loss of income or replacement fees for such a postion/length of time. You will not be allowed to have a gained a financial advantage.
You would be best to chalk it up to experience, expend your efforts on a replacement and ensuring you have a good contract of employment template.
Be careful if there is a subsequent refernece request. Do not use that opportuinity to get back at an ex-employee. The better cause maybe not to respond to a future request and a prospective employer can draw their own inference.
Now, the Employee has a right to see any reference you provide ONCE employed in his new position via the Data Protection Act (but only once employed). Again, he can then come after you for defamation etc ( the law is so weighted in their favour ). There have been moves to block this 'hole', but the DP Act currently wins out :-(
Finally, if you do decide to procede against him, strongly, strongly suggest you seek specialist (HR/legal) advice or it could it end in tears.
Hi - some banks offer HR advice services. Sorry I am not sure how the costs work out but you would then have the benefit of getting advice at the end of a phone, supply of legal contracts & they keep you updated of any other employment changes etc. There are obviously other companies that offer this service too, but this is one I have come across in a previous life! http://www.rbsmentor.co.uk/services/adviceline.aspx
On a slightly different note, have you tried your local council?
My local council currently has a scheme that gives you 5 hours with either an employment solicitor or a HR expert if your a small business that wants to employ workers to draw up contracts and what not.
It's amazing the different programmes they run for small business throughout the year...
Begs the question...... why did you pay him for holidays not accrued ?.
Note to every employer on here...if a new employee wants holidays ONLY pay them what days they have accrued, the rest of the days to be taken unpaid leave.
What Adrian describes happened to me. One of my employees - whom I liked and trusted - asked to extend their week long Christmas leave to (they said) spend more time with their family.
I agreed only to get an answerphone message left on the evening before this person was due back saying that they were leaving.
I don't remember all of the detail now as this happened some 12 years ago but I do recall that this person had done their homework and sought advice from Citizens Advice.
I had very little, or no, protection, I recall.
But you're right....it's best not to sway from a rigid businesslike approach.
Brian www.mibservices.co.uk said:
Back to basics, holiday entitlement works out at 1 day for every 9.25 days worked, which is 28 days per year including bank holidays.
It is up to you to provide your employee(s) with rules and guidelines of when they can or can’t take their holidays – you make the rules. In this case Adrian, from what I can make out, the maximum he/she could have worked from the start of March, would have been 10weeks (or 50days) entitling them to 5.5days holiday. If they also had the 4 Bank Holidays off, then they have taken 14 days.
You aren’t the first and certainly won’t be the last, but I reckon he knew what he was doing and you’ve been done mate. Personally I would ask for the money back, although the chances of getting it are virtually nil and as mentioned above, taking it further could get messy and expensive, so put it down to experience.
Phil Voice said:
Some very good advice on this thread. I think it takes a lifetime to work out which employees to trust and which not to, and you will still get it wrong occasionally.
Brian www.mibservices.co.uk said:
In your case I doubt very much if legal proceedings are worth it. I suspect there is a certain amount of injured pride here (can't blame you if there is) as you no doubt invested time and money in this individual only to have him (expletive deleted) throw it back in your face.
My advice, for what it is worth, take it on the chin and make sure that it never happens again.