An employer's guide to holiday requests

All workers are entitled to make holiday requests throughout the year and running a business means you need to be ready for such requests with the appropriate policies, pay structure and cover in place.  Our Employment Law team explains here the key facts you need to consider regarding holiday requests and whether any unused holiday can be carried over.

How much notice do workers need to give for their holiday request?

When a worker wants to take holiday they must give notice which is twice the length of the holiday that they wish to take unless you have an arrangement or agreement stating otherwise in your policy or employment contract.

You can then give counter notice refusing to grant the holiday, for example if there is a lack of cover or it is a busy period for the business, so long as this counter notice is equivalent to the length of the holiday requested, and the worker is not prevented from taking their leave to which they are entitled in that holiday year.  For example, if the worker has requested 5 days' leave and you wish to refuse 4 days of the request, you must give notice at least 4 calendar days before the date on which the leave was due to start.

You can require workers to take leave at particular times, such as over the Christmas period.  In this situation, you must give notice equal to twice the length of holiday that you wish the workers to take, i.e. if you require the worker to take two weeks' leave, you must give at least four weeks' notice to the worker.

There are no explicit requirements about the form that this notice must take but it is advisable to give this notice in writing so there is a record of the notice being given.  Although you can refuse to grant holiday leave at a certain time, you cannot refuse or prevent workers from taking their leave entitlement for the whole year.

It is possible for you to identify annual leave periods in advance, before the precise dates are known, by reference to a Summer shutdown or after the completion of a particular project.  It may also be possible to identify when workers will be prohibited from taking annual leave where specific dates are not yet known, for example, term dates for those who work in the education sector. However, in Craig and others v Transocean International Resources Ltd, the Employment Appeal Tribunal noted that employers should, in accordance with best practice, give specific advance notice to the workers of the specific periods that they could and could not take leave, rather than refusing the workers' holiday requests once they have been submitted.

How is holiday leave accrued?

During a worker’s first year of employment, their holiday entitlement for the remainder of the holiday year in which employment starts should be calculated on a pro rata basis.  In the first year, holiday accrues at the rate of 1/12^th of a full year's entitlement at the beginning of each month. Without this monthly accrual, a new worker would be entitled to take their entire leave entitlement during their first few weeks of employment.  You can prevent a worker from taking holiday, or delay it until later in the year, whether or not the holiday entitlement has been accrued by that time.

You can also override the pro rata leave entitlement and accrual provisions if your employment contracts contain equivalent or more generous terms, but you cannot apply less generous terms.

After the first year of employment, the whole annual entitlement becomes available at the start of each holiday year. However, it is standard practice to limit the amount of holiday that can be taken at once by including a clause in the worker's contract or in a staff handbook.

Can workers carry over unused statutory holiday?

Workers are entitled to 5.6 weeks' statutory holiday each year which is made up of an entitlement to four weeks, originating from the Working Time Regulations 1998, and follows EU and European Court of Justice (ECJ) judgements.  The additional 1.6 weeks originates in UK law and represents the number of public holidays in the UK in a year.  However, there is no need to use these days on public holidays.

Ordinarily, the four-week holiday entitlement must be taken in the leave year to which it relates, or else it is lost. You do not have to allow any part of the four weeks of leave to be carried forward into the next holiday year.

However, the additional 1.6 weeks of holiday entitlement can be carried forward into the leave year immediately following the leave year in which it falls due if you and employee agree, usually in the employment contract.

However, there are some circumstances in which case law has established that employees should be permitted to carry over unused statutory holiday to the next year, and sometimes beyond:

1. The Court of Appeal in NHS Leeds v Larner [2012] held that the Working Time Regulations 1998 could be interpreted, in accordance with the European case law, to allow carry-over of the four weeks' entitlement if a worker was unable or unwilling to take it because they were on sick leave.
2. In Plumb v Duncan Print Group Ltd [2015], the Employment Appeal Tribunal held that, where annual leave is carried over in these circumstances, it must be taken within 18 months of the end of the year in which it accrues.

If a worker has been unable to take their statutory holiday in the year in which it accrued because of maternity leave, or other period of family leave, you must allow the worker to carry it over to the following year.

In a situation where you have told the worker that their annual leave will be unpaid, this may deter them from exercising their right to leave, and the right to any of the four weeks annual leave will carry over, potentially until termination. This may be the case if you have incorrectly identified their employment status as an independent contractor and therefore given them no right to paid holiday.  It is vital that all of your workforce have been correctly classified as worker, employee or self-employed contractor and are given their entitlements accordingly. 

In order to avoid the situation where a worker did not have an effective opportunity to take their entitlement to the four weeks of leave, you need to provide sufficient information to their workers about their holiday entitlement.  You could send an email half way through the holiday year reminding workers to use their holiday entitlement in the relevant year, otherwise they will lose the untaken entitlement.  You could also add a "use it or lose it" provision in a holiday policy and communicate this to your workforce using targeted notices to your workers.  This involves identifying individual workers who are not taking their holiday and writing to them, in good time before the end of the holiday year, to encourage them to take their holiday and remind them that they will lose their entitlement if they do not take it.

Having the appropriate policies in place to support your employees and workers to take their holiday entitlement is of paramount importance, not only to reduce the risk of claims against you, but also for their own wellbeing.  If you are looking for advice on having the right policies in place, or need advice on holiday pay, you can contact the Employment team on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.