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
