Employment law- holidays
What is my holiday entitlement?
You are entitled to a minimum of 5.6 weeks paid holiday each year (equal to 28 days including Bank Holidays), although you may be offered more than this in your contract of employment. You must take holidays when it is convenient with your employer- there is no absolute right to take the holiday times of your choosing.
You cannot decide to take payment in lieu of holiday unless your employment has terminated in which case you are entitled to any accrued but untaken holiday for that year. Your employer may stipulate that your remaining annual leave is to be taken during your notice period, assuming you are working this or on garden leave.
If you are sick during a pre-booked holiday, new case law (and forthcoming legislation) provides that you may in some circumstances be able to claim back the holiday time for the period that you were sick and even roll that extra time into next year’s holiday allowance.
Part- time workers
Part-time workers are also entitled to a minimum of 5.6 weeks of paid holiday each year, which is calculated on pro- rata basis depending on how much you work. For example, if you work 3 days a week, your leave is calculated by multiplying 3 by 5.6, which comes to 16.8 days of annual paid leave.
How much notice do I need to give my employer before I take my holidays?
The general notice period for taking leave is at least twice as long as the amount of leave you want to take (unless there is a more informal arrangement with your employer or your contract of employment says otherwise). For example, you need to give 2 weeks notice for 1 week’s leave, or 2 days’ notice for 1 day’s leave- unless your contract says something different.
Can my employer refuse my request for holiday, even if I have already booked it?
Yes, your employer can refuse your holiday request, for example during busy periods. If you have already booked your time off, your employer must give as much notice for you to cancel it as the amount of leave you have requested. For example, your employer must give 2 weeks’ notice to refuse your booked holiday if the leave you requested was for 2 weeks.
Although your employer can refuse to give you holiday leave at a certain time, they cannot refuse to let you take your minimum leave entitlement of 28 days for the year.
Can my employer refuse my request for holiday leave if I am working my notice period?
Yes. Your employer can consider whether or not your request for annual leave is compatible with the needs of the business and can refuse it, as long as it does so in line with its annual leave policy. You are, however, entitled to be paid in lieu of any untaken holiday entitlement on the termination of your employment, and so it is usually more cost effective for your employer to allow you to take your holiday during your notice period.
What are my rights if my employer refuses to pay for holiday entitlement, and says it must be taken as unpaid leave?
Following a ruling by the European Court of Justice towards the end of 2017, your paid holiday entitlement (up to 20 days which is the EU minimum) is not lost- even though the new holiday year starts. Therefore your outstanding paid holiday entitlement can bank up for many years and would be a payment your employer would need to make is still owed when your employment ended. The rationale for this is that you have been prevented from exercising your basic EU rights to minimum paid holiday, and it is actually irrelevant if you have actually asked for the annual leave or not.
This ruling applies to all employees and workers- including those like Uber drivers who the tribunals have found to have “worker status” -even though they have been classified as ‘self employed’ by Uber.
Can my employer insist that I take holiday during certain times of the year?
Yes, employers are entitled to tell their staff to take leave on certain days, for example bank holidays or Christmas. This includes asking you take your holiday during your notice period.
Will I automatically be paid for the Bank Holidays?
If you are a worker in the UK you have a statutory right to at least 5.6 weeks paid leave. This amounts to 28 days paid holiday if you work five days a week ,and your employer can include bank holidays as part of your statutory entitlement- as many do. But there is no statutory right to be paid bank or other public holidays on top of this 28 day entitlement, so you need to check your contract to see if it says anything different.
Can I take the Bank Holidays off if I want to?
A common myth is that employees are entitled to have bank holidays off, but the reality is it depends on what’s in your contract of employment.
I have outstanding holiday that I want to carry over into next year. Does my employer have to agree to this?
This will depend on whether your contract of employment provides that you can carry over holiday into the next year, and how many days.
In the absence of anything in writing, then if you are entitled to 28 days leave, you can agree with your employer to carry over up to a maximum of 8 days. If you receive more than 28 days’ leave, your employer may allow you to carry over any additional untaken leave. However, if your employer has a ‘use it or lose it’ policy, you will lose any outstanding holiday if you have had the opportunity to take it but declined to do so.
Your employer must allow you to carry over a maximum of 20 of your 28 days’ leave entitlement if you couldn’t take annual leave because you were off sick.
Can I carry over my annual leave if I can’t take it because of coronavirus?
If you are unable to take your annual leave entitlement for any reason, for example because you are a key worker, or you have been placed on furlough leave, the government has put regulations in place to allow you to carry over up to four weeks (20 days), which you will be able to take over the next 2 leave years. This would only apply if the circumstances of your employment meant that you did not have enough time to take the holiday leave. If your employer insists that you take holiday at certain times (and which may utilise your holiday allowance), there is nothing unlawful about this, and the question of carrying over holiday then becomes irrelevant.
Am I entitled to be paid for holiday that I’ve not taken?
There is no right to be paid for holiday leave that you haven’t taken during the year. Workers are only entitled to a payment in lieu of unused holiday on termination of their employment contract.
Am I entitled to take overtime into account in relation to holiday pay?
Yes, under a new court ruling, this may be possible. Please click here to read Philip Landau’s blog in relation to this.
Can I take lost commission into account in relation to my holiday pay?
Yes, under a recent court ruling this may also be possible. Please click here to access our blog.
Is my employer able to deduct overpaid holiday pay from my final salary payment?
Where you have taken more than the annual leave to which you would otherwise have been entitled to from the beginning of the holiday year to your exit date, your employer can deduct any excess holiday pay paid from your final salary. This is only, however, if there is express provision reserved for this in your contract of employment, or other relevant agreement. A “relevant agreement” for these purposes is a workforce agreement, a collective agreement incorporated into your contract, or any other legally enforceable agreement.
Can my employer cancel a pre-booked holiday?
Yes, your employer can cancel a period of annual leave, which is notice of at least the same length as the period of leave to be cancelled. For example, if you have booked a period of four days’ annual leave, your employer must give at least four days’ notice of cancellation.
Your employer must not cancel a period of annual leave if it means that you are unable to take your full statutory annual leave entitlement in that leave year.
If your employer cancels a period of leave without a clear business reason (and without compensation) which results in you not being able to go on a booked holiday and suffering financial loss, you may have a case for constructive dismissal. You would need to argue that the cancellation is a breach of the implied duty of mutual trust and confidence with your employer.
Can I cancel my pre-approved holiday, and does my employer have to accept this?
Unless your contract of employment or handbook states otherwise, there is no legal requirement for an employer to cancel annual leave that has been approved. It would be difficult to argue that your employer is being unreasonable in this instance, particularly as temporary cover may have been arranged to deal with your previously approved holiday.
Am I entitled to go on holiday whilst I’m on sick leave?
Yes, you can, but you do need to check with your employer first in the same way as you do when you are not on sick leave, and your employer can refuse in the same way.
How far back can I make a claim for holiday pay?
The government has introduced the Deduction from Wages (Limitation) Regulations 2014 which:
(1) limit all unlawful deductions claims to the period of two years before the date that a claim form is lodged; and,
(2) explicitly state that the right to paid holiday is not incorporated as a term in employment contracts.
The effect of this is to remove any opportunity that employees may have of bringing long-term claims for outstanding holiday pay, either in the tribunal or civil courts.