FINANCE AND BUSINESS
Goin’ where the sun shines brightly
The world of business never stops, which means early starts and long days for many in most industries. With
working days being very intense, time off is valuable and employees rank their entitlement to annual leave
as one of the most important benefits they receive. Mark Stevens, a senior associate in the employment
team at VWV, says that there are a number of issues – and cases in the European courts – that employers
need to be aware of when handling requests for leave
Let me begin by saying that all
workers are entitled to 5.6 weeks’
annual leave per year, which
amounts to 28 days per year
for those who work five days a week.
However, for a part-time worker, their
allowance is reduced pro rata.
For all workers, public holidays
can count towards their entitlement to
annual leave. In terms of shift workers,
an employer must calculate leave based
on the average shifts worked during the
12-week period immediately prior to the
requested leave period.
Interestingly, there is no statutory
right to specific bank or public holidays.
However, if the contract says that staff
are entitled to ‘28 days holiday plus bank
or public holidays’, then employees are
contractually entitled to take bank or
public holidays off.
It’s also worth noting that part-time
workers who have a contractual right to
bank or public holidays, have a right to
a pro-rated equivalent of their full-time
colleagues, whether or not they work on
a bank/public holiday itself.
As for pay, employees are entitled to a
week’s pay for each week of annual leave,
so, for employees with normal, regular,
hours of work, this generally means
their basic salary without any bonus or
irregular payments taken into account.
This becomes more complicated
where an employee’s pay fluctuates. In
these circumstances holiday pay will
be based on average pay during those
normal working hours over the previous
12 working weeks.
Employers must also exercise caution
when dealing with an employee whose
pay includes commission. The Court of
Justice of the European Union (CJEU) has
previously found that a salesman, paid
partly by regular salary and partly by
commission, should be paid holiday pay
that includes commission.
Another case of note is that when
the right to annual leave was first
introduced, casual workers with
irregular working patterns were often
given ‘rolled up holiday pay’ – their
holiday pay was included within their
regular wage payments.
The European Court of Justice (ECJ),
however, ruled this unlawful as it meant
that a worker received no pay while they
were on holiday.
Not all in favour of employees
But what about an employer’s options?
Where an employee wants to take
holiday when its inconvenient for the
business, their employer can serve a
counter-notice on them stating that their
holiday request cannot be accepted.
However, this counter notice must
be given at least as many calendar days
Women on maternity leave continue to
accrue holiday during their leave. A woman
taking her full maternity leave entitlement
of 52 weeks will accrue a full year’s
An employee continues to accrue statutory
holiday during sickness absence, even if
they are absent for the whole holiday year.
This means that an employee who has
exhausted their sick pay entitlement could
request to take paid holiday during their
Sickness during annual leave
The ECJ has held that a worker who
becomes unfit for work during a period
of their statutory leave must be entitled
to reschedule the period of their planned
leave that coincided with the period of their
sickness. In the CJEU’s eyes, an employee
cannot be unfit to work and on annual
leave at the same time.
Special requests for holiday
Employers may need to consider requests
for special holidays - such as a honeymoon
or a “once in a lifetime” trip on a caseby
case basis. In situations such as this,
an employer may wish to exercise their
discretion to allow a longer break than
entitled under the rules. Alternatively, the
employer could allow the employee to take
some extra time as unpaid leave. The key is
to not set a precedent.
before the proposed leave is due to
commence as the number of days which
the employer is refusing.
And as for unused statutory
holiday, it ordinarily expires at the end
of the holiday year. This means that
an employee is not entitled to carry
statutory holiday over or to be paid in
lieu of unused statutory holiday.
However, employers can agree that
staff may carry over unused holiday into
subsequent holiday years.
Generally, the only time that
employees should be paid for their
annual leave is on the termination of
12 www.rcimag.co.uk June 2020