To keep you
abreast of the changes in legislation and current case law in the
field of employment, our e-newsletter is here to keep you updated
with arising issues.
Holiday Rights Q &
A
1. I have just started at a new place of
work and I want to take a holiday more or less straight away.
Can I take all or a large proportion of my statutory annual
leave towards the beginning of the leave year?
The Working Time
Regulations 1998 do not require workers with more than one
year’s service to accrue their statutory holiday rights.
Subject to the notice requirements set out in Reg 15 such
workers have the right to take four weeks’ paid annual leave
at any time during a leave year.
However
the Working Time (Amendment) Regulations 2001 SI 2001/3256
introduced a system of accrual applicable to workers who are
in the first year of their employment. Such workers are only
entitled to take statutory holidays that they have accrued
in accordance with Reg 15A(2) ,which provides that leave accrues
over the course of the first year of employment at the rate
of one twelfth of a worker’s annual entitlement on the
first day of each month of that year.
2. I have been off sick for the best
part of the year and it is unlikely that I will be going back
to work before the end of the leave year. Have I lost my right
to holiday entitlement?
A worker’s
entitlement to statutory leave is not dependent upon actually
being at work. If a worker is absent from his or her place of
work by reason of sickness provided there is a contract of
employment in place at the relevant time then under Reg 13 of
the 2001 Regulations an individual who has been a worker
during the whole or part of a leave year is entitled to four
weeks’ annual leave.
However employers are entitled to
have a contractual rule stipulating that workers do not accrue
contractual leave in addition to the statutory minimum during
a period of sick leave. Having said that, where a worker is
away on sick leave although they are taking a ‘rest period’
within the meaning of Reg 17 and therefore cannot take a ‘rest
period’ and a period of annual leave simultaneously he or she
can take advantage of whichever right is more favourable. As
such Reg 17 allows a worker on long-term sick leave to request
that he or she be regarded as taking a period of annual leave
rather than a period of sick leave. To take annual leave
during a period of sickness a worker merely needs to give
their employer notice in accordance with Reg 15.
Accordingly where a worker
on long-term sick leave has exhausted his or her right to
sick pay if he or she takes a period of annual leave he or
she will be entitled to be paid in respect of that leave.
3. I am currently employed on a part
time basis working three days a week. The place where I work
gives full time workers paid public holidays I don’t normally
work on the days that public holidays fall and feel I am not
recompensed in any way. What is the position in law in such
circumstances?
If full time
workers at a particular establishment are contractually
entitled to paid public holidays and this right is in addition
to their statutory annual leave entitlement then it is likely
to be considered unlawful to fail to make provision for part
time workers to have the same contractual entitlement on a pro
rata basis.
The Part-
time Workers (Prevention of less Favourable Treatment)
Regulations 2000 SI2000/1551 provide that part-time worker has
the right not to be treated by his or her employer less
favourably than the employer treats a comparable full time
employee in the terms and conditions offered under their
contract of employment unless the treatment can be justified.
4. I have been told by my employer that
I am not entitled to paid public holidays in addition to the
four week minimum I am entitled to by law is this
right?
Yes.
Employers can count public holidays as part of the worker’s
four week minimum leave entitlement under the Regulations.
Accordingly a worker who is entitled to 20 days leave a year
may find that eight of those days’ leave are taken up by
public holidays.
Furthermore a worker may under his or her
contract of employment be required to work public
holidays.
5. I have booked a holiday recently
without checking first that I could have the time off. I have
since put in a holiday request and it has been refused. The
holiday is due to start in two days time. Can I insist that I
be given this time off?
No. If
there are specific notice provisions in your contract of
employment regarding holiday leave they you must comply with
those, in the absence of any contractual agreement then the
2001 Regulations set out rules which apply.
Regulation 15 (1) states that a
worker wishing to take leave must give his or her employer
notice which must be at least twice the period of leave to be
taken. If the employer objects to the proposed period of leave
then he can issue a counter notice within a period equivalent
to the leave requested.
An employer does not have to state the
reason for refusing the leave request nor is there any
limitation on the number of times an employer can refuse a
request for leave although an employee must be allowed to take
leave during the leave year in accordance with his or her
entitlement.
6. I have been told that I have to take
part of my annual leave entitlement during the Christmas
shutdown at work but I don’t want to, can my employer insist
that I have this time off?
An employer is entitled by virtue of Reg
15 (2) of the 2001 Regulations to give a worker notice that he
or she is required to take a particular period off as part of
his or her annual leave entitlement. The employer must give
the worker notice of this requirement twice as many days in
advance of the number of days the worker is not required to be
in work.
Accordingly this allows an employer, as
in your case, to have a Christmas shutdown and to stipulate
that workers must take statutory annual leave during this
period.
7. I have just handed in my notice and
will be leaving my current employer in two weeks which will
mean that I have been employed there for eighteen months. It
will be six months into the holiday year and I have not taken
any holiday to date. I need to work right up until my last day
what is the position regarding the holiday I have
accrued?
On the
termination of your employment you will be entitled to a
payment in lieu of unused statutory holiday. At the date of
leaving you will have accrued two weeks’ leave and therefore
are entitled to be paid two weeks’ pay in respect of that
untaken leave.
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The Working Time
Regulations 1998 do not require workers with more than one
year’s service to accrue their statutory holiday rights.
Subject to the notice requirements set out in Reg 15 such
workers have the right to take four weeks’ paid annual leave
at any time during a leave year.
However
the Working Time (Amendment) Regulations 2001 SI 2001/3256
introduced a system of accrual applicable to workers who are
in the first year of their employment. Such workers are only
entitled to take statutory holidays that they have accrued
in accordance with Reg 15A(2) ,which provides that leave accrues
over the course of the first year of employment at the rate
of one twelfth of a worker’s annual entitlement on the
first day of each month of that year.
However employers are entitled to
have a contractual rule stipulating that workers do not accrue
contractual leave in addition to the statutory minimum during
a period of sick leave. Having said that, where a worker is
away on sick leave although they are taking a ‘rest period’
within the meaning of Reg 17 and therefore cannot take a ‘rest
period’ and a period of annual leave simultaneously he or she
can take advantage of whichever right is more favourable. As
such Reg 17 allows a worker on long-term sick leave to request
that he or she be regarded as taking a period of annual leave
rather than a period of sick leave. To take annual leave
during a period of sickness a worker merely needs to give
their employer notice in accordance with Reg 15.
The Part-
time Workers (Prevention of less Favourable Treatment)
Regulations 2000 SI2000/1551 provide that part-time worker has
the right not to be treated by his or her employer less
favourably than the employer treats a comparable full time
employee in the terms and conditions offered under their
contract of employment unless the treatment can be justified.
Regulation 15 (1) states that a
worker wishing to take leave must give his or her employer
notice which must be at least twice the period of leave to be
taken. If the employer objects to the proposed period of leave
then he can issue a counter notice within a period equivalent
to the leave requested.
