This time of year can be a busy time for annual leave requests. Whether you're a parent juggling childcare with work and school holidays, or an employer trying to keep your business running while the sun shines, it can sometimes be difficult to find out holiday rights and entitlements.
This article provides an overview as to the key points.
Once an employee starts work details of holidays and holiday pay entitlement should be found in either the employee’s written contract (where there is one) or a written statement of employment particulars. It should be noted that a written statement is required by law and must be given to employees by the employer no later than two months after the start of employment.
Most workers are legally entitled to 5.6 weeks’ paid holiday per year
Most workers – whether part-time or full-time – are legally entitled to 5.6 weeks of paid annual leave (this is known as statutory entitlement). A week of leave should allow workers to be away from work for a week i.e. it should be the same amount of time as a working week. If a worker does a 5-day week, he or she is entitled to 28 days’ leave. However, for a worker who works 6 days a week the statutory entitlement is capped at 28 days. If a worker does a 3-day week, the entitlement is 16.8 days’ leave.
Workers must give their employer notice if they wish to take annual leave
The default notice period must be twice as long as the period of leave requested (although an individual contract may state differently).
The employer can refuse permission by giving counter notice at least as long as the leave requested.
Employers can set the times when workers can take their leave
Restrictions on taking holidays may be expressly stated in the contract of employment or implied from custom and practice. Employers may choose to: shut down for certain periods during which all or some groups of workers have to use their annual holiday entitlement, nominate particular dates as days of closure when workers are expected to take annual leave (for example, over the Christmas and New Year period), or determine the maximum amounts of leave that can be taken on any one occasion and also the periods when leave may be taken.
An employer can require a worker to take all or any of the leave to which a worker is entitled at specific times, provided that the worker is given prior notice.
Workers can bring a claim if holiday entitlement is denied
Workers denied statutory entitlements to paid annual leave should seek to settle disputes with their employer by talking through the problem. If the problem cannot be resolved informally, the worker should follow the organisation’s grievance procedure.
If it is not possible to reach an agreement in this way, workers may submit a complaint to an Employment Tribunal within 3 months less 1 day of the refusal. If the complaint is upheld, the Tribunal may award compensation to be paid to the worker by the employer.
If employment ends workers have the right to be paid for any leave due but not taken
Accrued holiday on termination need not be rounded to the nearest half day – payment can be made for the exact amount of leave accrued. Unless a contract of employment improves the position, the statutory position is that payment for untaken leave should calculated using the formula: (A x B) – C where: A is the period of leave to which the worker is entitled, B is the proportion of the worker’s leave year which expired before employment ended and, C is the period of leave taken by the worker between the start of the leave year and the termination date.
There is no legal right to be paid public holidays
Generally, public holidays include bank holidays, holidays by Royal Proclamation and ‘common law holidays’. When public holidays in the Christmas and New Year period fall on Saturdays and Sundays, alternative week days are declared public holidays. There is no statutory entitlement to paid leave for public holidays. Any right to paid time off for these holidays depends on the terms of a worker’s contract. If public holidays are not expressly covered in the contract, the right to paid leave may have built up through custom and practice. Paid public holidays can be counted as part of the statutory 5.6 weeks of holiday entitlement.
Some workers can carry leave over from one leave year to the next
Workers must take at least 4 weeks statutory leave during the leave year, they may be able to carry over any remaining time off if their employer agreed. Workers who receive statutory leave don’t have an automatic right to carry leave over to the next holiday year, but employers may agree to it.
Workers who are entitled to contractual leave may be able to carry over time off if the employer agrees, this agreement may be written into the terms and conditions of employment.
When workers are unable to take their leave entitlement because they’re already taking time off for different reasons, such as maternity or sick leave, they can carry over some or all of the un-taken leave into the next leave year. An employer must allow a worker to carry over a maximum of 4 weeks if the worker is off sick and therefore unable to take their leave.
If an employee chooses not to take statutory annual leave during sick leave, they can carry forward the un-taken leave for up to 18 months from the end of the leave year in which the leave arises.
The leave year does not always run January to December
A worker’s holiday year is usually confirmed in their written statement or contract of employment. If this is not defined then leave will begin on the date the worker began work for the current employer or 1 October (which is the anniversary of the regulations becoming law)
If a worker starts work part way through the company’s leave year, the initial holiday entitlement is based on the period from that date until the leave year ends. In most cases, employers will calculate entitlement for a part year pro-rata to the full year.
It should be noted that, at present, the provisions regarding holidays and holiday pay do not apply to services such as the armed forces or police or parts of the civil protection services where their activities conflict with the statutory entitlement to paid annual leave. Some people, such as agricultural workers, are also not covered by the regulations.
By Victoria Fagan, employment law team