EMPLOYERS: Get it right on workers’ rights & holiday pay
Date online: 10/12/2013
MANY EMPLOYERS are still uncertain about workers’ rights in relation to holiday pay, particularly when impacted by absence for sickness or injury.
The Government is now considering amending current Annual Leave Legislation in order to clarify this issue. Until such changes happen, case law continues to provide us with a useful guide.
Annual Leave Guidelines
UK courts and the European Court of Justice have decided issues, in a number of high profile cases, based on the following determinations:
1. Annual leave accrues whilst an employee is absent from work through sickness or injury
2. An employee must secure the employer's agreement as to when holiday leave is taken but the employer cannot prevent the employee from taking it. The employer can however include a term in the Contract of Employment determining when employees can take holiday leave.
3. Untaken holiday leave may be carried forward to a subsequent holiday year if, due to sickness or injury absence, the employee is unable to take it in the holiday year in which it accrued.
4. The right to carry leave forward untaken holiday leave does not continue indefinitely and if an employee is absent on sick leave or for injury for more than one year the right may be lost because the right is to take paid leave rather than being paid in lieu for it.
5. If an employee is taken ill during annual holiday leave he/she may request that his/her leave be recorded as sickness and that holiday leave be taken at a later date.
6. Employers cannot force employees to take holiday leave during absence for sickness or injury
7. Unless there is a term in the Contract of Employment granting paid leave on bank and public holidays there is no right to be paid for those days.
8 The amount of annual leave that may be carried forward is 5.6 weeks but the right to payment in lieu of leave on termination of employment is limited to 4 weeks unless the Contract of Employment provides otherwise.
Proposed Changes to Annual Leave Legislation
The proposed changes to Annual Leave Legislation include:
1. Granting a statutory right to carry unused holiday leave from one holiday year to the next for employees unable to take it due to sickness or injury.
2. Granting a similar right where the leave cannot be taken because of maternity, adoption, parental and paternity leave.
3. Allowing employers to buy out 1.6 weeks of annual holiday leave and a requirement for employees to carry over up to 1.6 weeks of holiday leave entitlement to a subsequent year if there is a genuine, over riding business need for them to do so.
Peter Rhodes
Peter Rhodes is a senior partner at Molesworths Solicitors with extensive experience and specialist expertise in litigation and employment law. If you would like to speak to Peter regarding any employment or litigation matter, please do not hesitate to contact our Employment Department on 01706 356666 or contact Peter directly on 01706 767413 or at prhodes@molesworths.co.uk
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.
