Sunday, 19 February 2012

How much holiday can I take?

There is a minimum right to paid holiday; if you work five days per week you are entitled 28 days for someone working five days a week. This is capped at a statutory maximum of 28 days for all working patterns. Part-time workers are entitled to the same level of holiday pro rata. You start building up holiday as soon as you start work. If you started work on or before 25 October 2001 (14 April 2002 in Northern Ireland) there are no legal rules about how your holiday builds up

Your employer can control when you take your holiday and provide in your contract for you to have more holiday than you are entitled to under current law. You get paid your normal pay for your holiday. Once you finish a job, you get paid for any holiday you have not taken.  Bank and public holidays can be included in your minimum entitlement. You continue to be entitled to your holiday leave throughout your ordinary and additional maternity leave and paternity and adoption leave.

You must give your employer advance notice that you want to take holiday. This notice should be at least twice as long as the amount of holiday you want to take.

Your employer can refuse permission for your holiday as long as they give you notice which is at least as long as the holiday requested. So to refuse a request for a week's leave, they would have to tell you a week in advance. Your contract may set out other rules about when you can take your holiday. This is allowed so long as the rules don't effectively prevent you from taking holiday at all.

In light of a recent European Court of Justice (ECJ) ruling, the following is applicable if you become ill during your holiday or just before you were due to take it. You can ask to convert the period of holiday concerned to sick leave and ask to take the missed annual leave at a later date.

Statutory annual leave cannot be replaced by a payment in lieu except where the worker's employment is terminated (Regulation 13(9) Working Time Regulations 1998). Employers are able to make a payment in lieu of any additional, contractual holidays, as long as this provision is contained in the employee’s contract.

Regulation 13(9) prevents the carry-forward of the four-week element of statutory leave entitlement.

Maternity leave and holiday entitlement

Holiday entitlement continues during maternity leave.  Some employees may ask to take their statutory holiday either before or at the end of the maternity period depending on how much holiday statutory holiday entitlement is available.  As statutory holiday is taken through the notice procedure above if employer and employee are in agreement then the unused holiday entitlement can be taken when the employer and employee agree.   There may be a problem taking statutory holiday at the end of the maternity if this means the unused statutory holiday is carried over into the next holiday year.  If this were to happen then if the holiday is not taken before the end of the holiday year the employee loses the holiday, as it is unlawful to carry forward any of the unused statutory holiday.  Essentially therefore the holiday should be taken before maternity leave commences.

Check however as if the employee has had holiday before the maternity leave commences and there is only contractual holiday due then providing the contract provides for the contractual holiday to be carried forward and or salary to be paid in lieu then there should be no problem.

Morgan Jones and Pett are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877000 or via email at davidpett@m-j-p.co.uk

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