Do you know your holiday rights?

As 2011 draws to a close and 2012 dawns, do you know what your holiday rights are?

With a handful of days left till the end of 2011, many have been caught out as employers have refused to allow employees to carry over accrued but untaken holiday! It is imperative that employers and employees know what their rights are in relation to annual leave to ensure they do not breach the law. The brief guide below sets out the basic principles.

The statutory position under The Working Time Regulations provides all workers with a minimum of 5.6 weeks (28 days) paid holidays as long as they work five days a week. There is nothing to stop employers allowing more than the 28 days should they wish to do so. What many do not realize is that employers are entitled to specify when the days are taken and if the allowance includes bank holidays. In the case of part time workers, their statutory allowance is pro rata (calculated) depending on their working week.

So how does it work in practice?

• Holiday accrues from the first day of the holiday year specified by the employer (eg: January to December)

• Normal pay applies

• Holiday accrues during periods of sick leave

• Holiday accrues during ordinary and additional maternity/paternity/adoption leave

• No entitlement to paid holiday for those who are self employed

• No right to additional holiday even if unpaid

• Employers can refuse holiday requests as long as notice is twice as long as length of holiday requested

• Employers can decide when certain holidays are taken depending on contractual position (e.g. Christmas)

• When employment ends, employees are entitled to take accrued annual leave days or be paid in lieu depending on contractual position

• When employment ends, if more holiday has been taken than has accrued, it can be deducted from final salary only if the contract permits

There is a general misconception that workers have a right to be paid on bank and public holidays even though they do not go to work. This is not the case. Employers who give paid leave for bank holidays are entitled to count these days towards the statutory holiday entitlement. To be clear, there are eight public holidays in England and Wales.

Best Practice

• Employers should be given advance notice of intended holiday (recommended to be twice as long as the amount of holiday requested)

• Always check contractual position regarding holidays for specific requirements

What if an employee is sick during booked holiday?

Unbeknown to many employers, if an employee becomes ill during or just before annual leave is due to commence, the holiday can be converted to sick leave instead. The annual leave can then be re-booked for another date within the holiday year.

What if the holiday year ends and there are annual leave days outstanding?

There is no right by default to carry leave over into the new holiday year. Holiday can only be carried forward if an employer allows and it is advisable to check individual contracts. There is unusually a cap of five days which employers allow to be carried over into a new leave year.

Many employees will find themselves losing out on precious days annual leave as they were under the impression they could either carry over days into the new year or be paid in lieu. There are no provisions that allow employees to exchange untaken holiday entitlement for pay, leaving many starting 2012 out of pocket.

For further advice on employment issues please contact Ms Kaajal Nathwani of Curwens LLP on 0208 363 4444 or via email on kaajal.nathwani@curwens.co.uk.