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Farrer & Co | “We’re all going on a summer holiday”

The summer can be a busy time for holiday requests, particularly around school holiday time. Below, I deal with 5 common queries regarding holiday.

1. Can I refuse an employee's holiday request?

Yes, provided you serve the employee with a counter-notice to their request to take holiday. This must be given at least the same number of days as the holiday period requested before the date on which the leave is due to start. For example, if an employee wants to take ten days' annual leave and you can't accommodate it at the particular time requested, you must give the employee notice of at least ten days before the date on which the leave is due to start.

As employees are required to give notice of at least twice the period of leave they are requesting, this gives employers sufficient time to consider holiday requests and, if necessary, serve the relevant counter-notice.

2. Can I require that an employee takes holiday at a particular time?

Yes, by giving the employee notice of twice the length of the period of leave you wish the employee to take. For example, if you require the employee to take one week's leave during an office period of closure, you must give at least two weeks' notice to the employee.

3. Can employees carry-over holiday from one holiday year to the next?

The statutory minimum holiday entitlement of 28 days (or 5.6 weeks) is made up of 20 days' holiday derived from the European Working Time Directive (WTD) and 8 days' additional holiday under our domestic Working Time Regulations (WTR) - this amounts to the number of public holidays in England and Wales. WTD leave (i.e. the first 20 days) may only be taken in the leave year to which it relates, otherwise it is lost. Additional WTR leave (i.e. the additional 8 days) and any additional contractual holiday entitlement may be carried forward into the next leave year in accordance with a relevant agreement, such as an employee's contract of employment.

CJEU case law has, however, established that employees who have been unable to take WTD leave in the relevant leave year due to long-term sickness absence or maternity or other family-related leave, should be permitted to carry over any unused statutory holiday into the next leave year. Although there is no ruling on the position in respect of contractual holiday in excess of the statutory minimum, it is generally thought best (and safest!) practice to permit women on maternity leave to carry the unused balance of contractual holiday as well.

Further, according to Advocate General Tanchev's non-binding opinion in the recent case of King v The Sash Window Workshop and another, a worker's paid holiday entitlement will carry over to subsequent years if the worker is unable or unwilling to take it due to reasons beyond their control, such as where their employer fails to provide a worker with "adequate facilities" for taking paid leave, for example, if the employer refuses to pay them for holiday. In such a case, the right carries over until such time as the worker has the opportunity to exercise it, or on termination, when the worker is entitled to a payment in lieu of all accrued holiday.

[In this case, the individual was said by the company to be self-employed and so not entitled to paid holiday. The AG's view is that Mr King was in fact a worker and so entitled to paid leave. However, he had been prevented from exercising this right due to the employer's refusal to pay him for any period of leave and so was entitled to a payment for the full period he was prevented from taking holiday – here worth £27,257. Quite a sum! We have obviously yet to hear what the CJEU says on this point, but if they follow the AG's opinion it is likely to become an area of particular risk in cases where the employment status of individuals is in dispute.]

4. Can I pay an employee in lieu of holiday?

Generally, only on termination of employment. The policy reason behind this is a health and safety measure to ensure that workers have the opportunity to rest and recover from work.

5. Can I require an employee to take holiday during their notice period?

Yes, provided you give notice, as set out in point 2 above, or you have the ability to do so within the employee's contract of employment.

Happy holidays everyone! If you require any further advice in relation to holidays please contact Sarah-Jane Watson or your usual contact within the team.

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