Annual Leave: FAQs

posted by KeithDaniel

With foreign travel resuming and the summer months approaching, employers may be receiving a higher number of annual leave requests than usual, from staff that are keen to make the most of missed holidays over the previous 2 years. With that in mind, this article considers some frequently asked questions regarding holiday entitlement in the workplace.

How much annual leave are staff statutorily entitled to? 

Most workers (with some limited exceptions) have a statutory right to a minimum of 5.6 weeks’ paid leave each year under the Working Time Regulations 1998 (the “Regulations”). This amounts to 28 days for a full- time worker and will be prorated for those working part- time.

A ‘worker’ for the purposes of the Regulations is defined as someone that works under a contract of employment or under any other contract where they undertake to personally perform work or services for another party to the contract, where that other party is neither a client or customer of theirs or any business or profession carried on by them.

Establishing whether an individual is a ‘worker’ for the purposes of the Regulations is not always straightforward and so we would encourage you to seek legal advice on the issue if you are ever in doubt.

Do workers have to give a minimum period of notice when taking holiday?

The Regulations contain certain requirements regarding notice in relation to annual leave but these can be varied or excluded by the employer.

Where there has been no variation or exclusion, the notice to be given by a worker wishing to take statutory holiday must be at least twice the period of leave that they are requesting. If an employer refuses the request, they must serve a counter notice at least as many days before the period of leave is due to start, as the number of days that are being refused.

Are workers entitled to time off for public holidays?

The 5.6 weeks’ entitlement takes into account 8 notional public holidays, but there is no right to time off on the days that those public holidays fall. An employer can be required to work on a bank holiday, as long as they get 5.6 weeks. If a worker is permitted to take leave on public holidays, then this will obviously count towards their annual leave entitlement.

Are employees entitled to an extra day’s holiday for the Queen’s Platinum Jubilee?

It has been announced there will be an extra bank holiday for the Queen’s Platinum Jubilee on 4th June 2022. The May Spring Bank Holiday, which usually falls on the last weekend of the month, will be moved to Thursday 2nd June and Friday 3rd June will become the extra bank holiday, therefore potentially creating a four-day weekend for some employees.

Whether the employee is entitled to the extra bank holiday is not as straight forward as it sounds and is in fact dependent upon the terms set out in their contract of employment. Employees will be entitled to the extra bank holiday if their contract of employment states their entitlement is 20 days holiday plus bank holidays.  Employees will not be entitled to the extra bank holiday if their contract of employment states their entitlement is 20 days holiday plus 8 days bank holiday or 28 days or 5.6 weeks, which includes bank holidays.

Depending on the contractual terms, whilst there is no automatic right to this extra bank holiday, employers may wish to consider whether it should be given as a gesture of goodwill. This may be a preferable option and may go some way in demonstrating appreciation for employee loyalty, especially where there are difficulties in retaining staff members. This will of course need to be weighed up against the needs of the business.  If employees usually have bank holidays off, then they are likely to expect the same to apply for this extra bank holiday on 4th June 2022 and we expect there is likely to be a negative reaction from employees if this extra bank holiday is not acknowledged.

In any event, it is important that staff are kept fully informed of what they are entitled to. In the event the employment contracts do not allow for this extra day and employees are required to take this day as part of their annual entitlement, employers will be able to ask the employee to use one of their holidays for the extra bank holiday as long as they give twice as much notice as the leave, i.e. at least 2 days’ prior notice to take 1 days leave. 

Please note, any employees who work part time hours should not be treated less favourably than their full-time or permanent colleagues concerning bank holiday entitlements

What impact does overtime have on a worker’s holiday calculations?

All overtime worked should be included when calculating a worker’s statutory holiday pay entitlement. There is an exception, however, where overtime is worked on a genuinely occasional and infrequent basis.

Can a worker take paid annual leave when on maternity leave?

No, it is not possible to take annual leave and maternity leave at the same time. This means that if a worker gives birth early whilst on annual leave, then her annual leave will stop and her maternity leave will start.

Will annual leave continue to accrue during maternity leave?

Yes, a worker on maternity leave continues to accrue their statutory and contractual paid annual leave entitlement.

What happens if a worker returns from maternity leave and wants to roll unused holiday into the following year?

A worker that has accrued statutory holiday during maternity leave must be permitted to roll this over into the following holiday year. However, an employer can legitimately require a worker to take the holiday on or by a specified date (for example, immediately upon completion of the maternity leave period).

In this scenario, the employer must provide notice of at least twice the length of the period of leave that the worker is being required to take. Some employers specify their stance on accrued holiday in their employment contracts or in the staff handbook.

If you would like more information about any of the issues raised in this article or on any other aspect of employment law, please contact us on 029 2034 5511 or at employment@berrysmith.com.