What your contract must say about holidays
The holiday season is coming up in December and of course as well as the pressures of buying presents, visiting family and spending time with loved ones, there is the issue of getting time off work – if you want it that is, although it might not be your choice…
Most workers have the right to take a minimum amount of paid holiday. This is called statutory holiday. You have the right to take statutory paid holiday from work if you are a worker. This includes people who work full-time, part-time, agency workers and casual workers. Only people who are self-employed and a few other exceptions will not be entitled to statutory paid holiday, principally the armed forces and the police. However, if you are not entitled to statutory paid holiday, your contract of employment will probably give you the right to take contractual holiday.
The rules about statutory holiday apply regardless of how long you have worked for your employer and as long as you are aged above school leaving years.
Before 1 April 2009, your right to paid holiday from work was 4.8 weeks. Your leave year may have started before 1 April 2009 and carries on after 1 April 2009. If so, your annual leave will be worked out on a pro-rata basis – 4.8 weeks pro rata for the period before 1 April 2009 and 5.6 weeks pro rata for the period from 1 April 2009.
Your contract of employment may give you the right to take more than the statutory amount of paid holiday. However, it cannot give you less. If your contract gives you the right to take more than the statutory amount of paid holiday, this is called contractual holiday. The law does not say how much contractual holiday you should get, or whether or not it should be paid.
What your contract must say about holidays
If you are an employee you are entitled to a written statement of your terms and conditions of employment as long as you have worked for your employer for one month. You are an employee if you have a contract of employment. Many employers do not give their employees a written statement of the main terms and conditions of the job even though the law says they have to. If your employer does not give you the written statement within two months of the date on which you started work, they will be breaking the law.
The written statement must contain information on your right to holidays, including public holidays and holiday pay. Your employer must give you enough information to work out your entitlement to holidays and holiday pay, and your right to any holiday pay you may have saved up if you leave your job.
The basics of holiday rights
There is a minimum right to paid holiday, but your employer may offer more than this. Here are the main things you should know about holiday rights.
How many paid statutory holidays you can take
You are entitled to a minimum of 5.6 weeks’ paid annual leave (statutory holiday) (28 days) if you are someone working five days a week or more. You are entitled to a minimum of 5.6 weeks’ holiday a year. This is called statutory holiday. To work out how many days’ holiday you can take a year, you need to multiply 5.6 by the number of days you work in a week.
– if you work a five-day week, you are entitled to 28 days’ paid holiday a year (5.6 X 5).
– if you work 2.5 days a week, you are entitled to 14 days’ paid holiday a year (5.6 X 2.5).
If your normal working week is calculated in hours, your statutory leave may be expressed in hours too.
If you work casually or irregular hours it may well be easiest to calculate your holiday entitlement through hours worked. The holiday entitlement of 5.6 weeks is equivalent to 12.07 per cent of the hours you worked, so for example if you had worked 10 hours, you would be entitled to 72.6 minutes’ paid holiday:
– 12.07 per cent x 10 hours = 1.21 hours = 72.6 minutes
The holiday entitlement is just over seven minutes for each hour worked.
You should be treated no less favourably if you are a part-time worker than an equivalent full-timer. This means that if your employer gives extra days off to full-timers they may have to give extra time off to part-time workers as well.
What is a leave year?
It is important to note that you start building up holiday as soon as you start work. However, this does not mean you can take all of your leave as soon as you start work. The law says how your paid holiday builds up in your first year of work. A leave year is a one-year period in which you get your year’s worth of leave. Your employer will usually agree the start and end of the leave year with you. Some leave years start on 1 January and finish on 31 December. Others start on 6 April and finish on 5 April the following year. It is not prejudicial to your circumstances when it starts as often employers look at the bigger picture of all their staff.
If you and your employer have not agreed when the leave year should start and finish, the leave year will start on the day on which you started work and the anniversary thereafter.
If you start work partway through your leave year, the amount of leave you get depends on how much of the leave year you have worked. For example, if you start work in April in a company where the leave year starts on 1 October, you have started half-way through the leave year. You will therefore get half the annual paid leave for that year.
There are special rules if you are in your first year of employment. If you started work after 25 October 2001 (14 April 2002 in Northern Ireland), the amount of leave you can take in your first year of work builds up over the year. The amount of leave you can take builds up monthly in advance at the rate of one twelfth of your yearly leave each month. If this does not give you an exact number of days leave, your leave is rounded up to the nearest half day. Your employer will deduct any leave you have already taken from the leave you have built up.
Bank and public holidays can be included in your minimum statutory entitlement. In England and Wales there are currently 8 permanent bank holidays. If the usual date of a bank or public holiday falls on a Saturday or Sunday, a ‘substitute day’ is given, normally the following Monday. For example in 2009, Boxing Day is actually on Saturday 26 December, so there is a substitute bank holiday on Monday, 28 December.
In summary therefore the holidays in England and Wales for the next 12 months are as follows:
Christmas Day: Friday 25th December 2009
Boxing Day: Monday 28th December 2009 (substitute day as 26th December falls on a Saturday)
New Years Day: Friday 1st January 2009
Good Friday: Friday 2nd April 2010
Easter Monday: Monday 5th April 2010
Early May Bank Holiday: Monday 3rd May 2009
Spring Bank Holiday: Monday 31st May 2010
Summer Bank Holiday: Monday 30th August 2010
Of course not everyone takes public or bank holidays as holidays for themselves – and in fact you do not have an automatic right to take bank or public holidays off work, with or without pay. This will depend on your employment contract. Your employment contract may say that you have the right to statutory holidays or it may not say anything about contractual holidays or statutory holidays.
In these cases, your employer can:
– ask you to work bank or public holidays, or give you bank and public holidays off without paying you for them. In this case, you won’t lose your right to take your full statutory holiday at some other point,
– or give you bank and public holidays off and pay you for them but ask you to count them towards your statutory holiday entitlement, or
– do a combination of all of these.
Any right to time off or extra pay for working on a bank holiday depends on the terms of your contract of employment.
Example: if you work five days a week, you are entitled to 28 days’ statutory paid holiday a year (5.6 weeks X 5 days). If you are expected to take bank and public holidays off, and you are paid for them, these days will be deducted from your 28 days. In England and Wales, there are eight bank and public holidays so this will leave you 20 days which you can choose when to take. In Scotland, there are nine bank and public holidays so this will leave you 19 days which you can choose when to take. In Northern Ireland, there are ten bank and public holidays so you will be left with 18 days which you can chose when to take.
Remember that if your leave year started before 1 April 2009, you will be entitled to fewer holidays than this.
Your employment contract may give you bank or public holidays off on top of your statutory holiday. If this is the case, your contract will specify this and also say whether you will be paid for these days. The situation can be complicated if your contract says nothing about bank and public holidays, in which case your employer may pay you for bank and public holidays as part of this extra entitlement or they may ask you to work bank and public holidays and take the extra days off at other times.
You can ask to take your holiday whenever you choose, as long as you give your employer the right notice and take into account certain agreements between you and your employer. But an employer has the right to refuse your request to take holiday, as long as they give you the right notice at the right time and take account of certain agreements between you.
Your employer can order you to take all or any of your holiday at a particular time, as long as they give you the right notice at the right time and take into account certain agreements between you. Your employer can decide when some or all of your holidays must be taken. For instance, they may require you to take some of your holiday to cover the bank holidays, or may require the whole company to take holiday during a Christmas shutdown.
This may be in your contract of employment, or it may be a normal practice built up over time. An employer has to give the same amount of notice as you do.
The law does not put any limit on the amount of holiday you can take at any one time. This means you are not entitled to take two weeks of holiday at once, unless your agreement or employment contract says you can. This means that as long as an employer gives their employee the right notice at the right time, they could make you take your holiday as they choose, for example, take every Friday as leave until you have used up all of your holiday.
What notice must be given before you take holiday?
If you have not got an agreement with your employer about how much notice you have to give before you can take holiday the following rules apply:
– your employer can make you take all or any of your holiday at a particular time, as long as they give you notice. This notice must be at least twice as long as the holiday they want you to take. For example, if your employer wants to have a Christmas shutdown for one week, they have to give you notice of the date the holiday is to start at least two weeks before it starts.
– you must give notice to your employer when you want to take holiday. This notice must be at least twice as long as the holiday you want to take. For example, if you want to take three days’ leave, you must give your employer notice of this at least six days before your holiday is due to start.
Your employer can refuse to let you take holiday. To do this they must give you notice equal to the holiday you want to take. So if you have asked to take two weeks’ holiday and have told your employer four weeks before the date you want your holiday to start, your employer must tell you two weeks before your holiday is due to start that you cannot take the holiday.
What if your employer refuses to let you take holiday?
If your employer refuses to let you take any holiday, you should usually try to sort it out informally with them first. If this doesn’t work, you may need to raise a grievance.
If you have tried to raise the issue with your employer and are still not happy with the outcome, you can ask an employment tribunal to enforce your right to take holiday. If you make a claim to a tribunal, you must do this within three months of your employer’s refusal to let you take holiday.
If you have given your employer the right notice of holiday, you are generally entitled to take it. However, under certain kinds of agreement between you and your employer, they can refuse your request for holiday. They can also refuse your request for holiday if they have given you the proper notice of their refusal. However, if your employer has not given you proper notice of refusal but still refuses to let you go on holiday, you can claim compensation at an employment tribunal. You should raise a formal grievance with your employer first.
What if you are sick while on holiday?
If you are off work on holiday, and you become ill enough that you could be off work, you can take this time as sick leave rather than holiday. You can still take your holiday, but you can take it at a different time to when you originally planned to take it. You can carry the holiday you haven’t taken over into the next leave year if you are not able to take it this leave year because you are ill.
However, if you want to treat your time of work as sick leave instead of holiday, your employer can pay you sick pay rather than holiday pay for that time. Sick pay will be less than normal pay.
Your employment contract should say how and when you should let your employer know you are sick, and what proof they might need.
What happens to your holiday if you are off sick?
If you are off sick, you will be entitled to build up statutory paid holiday while you are off work. When you return to work, you can ask your employer if you can take the holiday you have built up before the end of the leave year. If you have had your employment terminated while you were off sick, you are entitled to be paid all the statutory holiday pay you have built up.
If your employer refuses to let you take holiday on your return to work or refuses to pay you statutory holiday pay you have built up if your job has ended, you can ask an employment tribunal to enforce your rights. You may be able to make a claim for all your unpaid holiday pay. You must make a claim within three months of the last date you were not paid holiday pay.
You will only be entitled to build up contractual holiday while you are off sick if your contract allows for this.
Holidays and maternity/paternity and adoption leave
Most women employees have the right to 52 weeks’ maternity leave. During this period, you have the right to build up your statutory holidays in the same way as if you were at work. Working parents may be entitled to paid paternity or adoption leave. During paternity and adoption leave, you have the right to build up your statutory holidays in the same way as if you were at work. Statutory holiday means the minimum holiday you are entitled to by law. Your contract may give you more holiday than this.
Carrying over holidays
You do not have a right to carry leave over but if you don’t take all of your statutory holiday entitlement during your holiday year, your employer may allow you to carry over the left over days to the next holiday year. You must take at least 4 weeks’ holiday a year, so only holiday on top of this (including the new extra days) can be carried over, and then only if your employer gives you permission or if this is permitted by your contract of employment. Generally, you are not allowed to carry over statutory holiday from one year to the next. If your contract gives you contractual holiday, you may be able to carry over some of this holiday to the next leave year. You can only carry over contractual holiday if your employment contract says you can. You may also be able to be paid for any contractual holiday you have not taken, depending on what it says in your employment contract.
Leaving your job
If you have not been able to take all the holiday you have built up before your job ends, you have the right to pay instead of the untaken holiday. Your employer should pay you for all the holiday you have built up. If you have an agreement with your employer which says how much pay you will get instead of untaken holiday, you may get the amount in this agreement. If your agreement with your employer does not say how much pay you should get, the rules on how much pay you should get for untaken holiday are complicated and you should seek further advice.
If your employer refuses to pay you for untaken holiday
Your employer may refuse to pay you for untaken holiday if you are leaving or have left your job. If you are in this situation you can enforce your right to pay for untaken holiday at an employment tribunal. If you are in this situation you may have to raise a written grievance with your employer first, before seeking the assistance of an experienced advisor.
If you owe holiday when you leave your job
If you have taken holiday you were not entitled to and you leave your job, your employer can sometimes make a deduction from your final pay for holiday you owe. The law in this area is complicated and you should seek further advice.
Holiday pay if your employer becomes insolvent
If your employer becomes insolvent, you may be able to claim money owed from the National Insurance Fund. You can claim up to six weeks’ holiday pay. This may be for holidays you have taken but have not yet been paid for, or for holiday pay you have built up.
As can be seen from the changes of 1st April 2009 in principle most people receive the equivalent of 4 weeks’ holiday from their jobs, or the equivalent, plus the 8 days’ public holiday as highlighted. However, it very much depends on your job and your contract of employment. If for example you work in the food industry in a restaurant, bank holidays are clearly very busy. What is of most concern is the fact that you can never take anything for granted.
Whilst it is possible to plan ahead and give your employer adequate notice of your taking a break, in the same way your employer can give you notice of when to take a holiday – wishful thinking you might say if you are not entitled to “carry over” your holiday. But it does clearly show that we cannot take our rights for granted, and that for every time we wish to rely upon a contract as employees there is the perspective of the employer. It would be perhaps an indication of some deeper problem if a person was refused holiday despite having given sufficient notice.
And in this day and age there should be a grievance procedure to resolve matters, although one hopes that it would not conclude with an employment tribunal. If the worst comes to the worst and you have to resort to legal action just remember that you have 3 months from the date of the refusal or the incident in question to lodge your complaint. Avoidance of doubt and communication though are the key therefore to expressing your intentions, and maybe working with your employer to ensure that you can look forward to and enjoy your holiday period.
By Cartwright Adams Solicitors