We are frequently asked questions about the rights of employees and employers in relation to holidays, so we have put together a few short paragraphs giving you the information you need. Hope it helps.
Holiday and long term sickness
Statutory holiday entitlement under the Working Time Regulations (WTR) continues to accrue during periods of sick leave. This means that a worker or employee does not lose any of their entitlement to statutory annual leave through being on sick leave whether they are sick for all or part of the leave year. However, employers are free to restrict any enhanced entitlement from accruing using their contract of employment.
It is also worth mentioning that a worker or employee can receive paid holiday even while on sick leave. For a worker or employee on long term sick who has exhausted their sick pay, i.e. been off work for more than 28 weeks, can ask to be paid in respect of their statutory holiday entitlement at their normal rate of pay. Conversely, a worker or employee can choose not to take a pre-arranged holiday if they are on long term sick leave. Instead, they can take their holiday at a later date, in the next leave year if necessary.
Family-related periods of leave
Entitlement to continue to accrue holiday depends on the type of leave being taken.
Maternity, adoption and paternity leave– employees on maternity leave accrue statutory and contractual leave in the normal way, as if they were at work. According to the WTR, holiday entitlement cannot be carried forward if the period of leave extends into a new leave year. However, for a woman to lose holiday in this way simply because she has taken maternity leave is unlawful under EU discrimination law therefore employers would be advised not to adopt a practice of refusing the carry forward of holidays. There is similar case law in relation to those taking paternity leave. Employees, or at least those taking maternity and paternity leave, should be encouraged to use up their holiday before their leave starts.
Parental leave – an employee on parental leave does not benefit from contractual holiday arrangements. They will continue to accrue statutory holiday entitlement under the WTR but may lose some of their entitlement if the period of leave extends into a new leave year.
Restrictions on taking annual leave
Contracts of employment or holiday policies can stipulate that a maximum number of weeks can be taken at any one time. They can also stipulate specific periods when leave can or cannot be taken for business reasons.
However, it would be a good idea to ask why particular periods of leave is being requested before making any decision, as employers need to be aware of potential religion or belief discrimination or harassment under the Equality Act 2010 and that a refusal to approve a request for annual (or unpaid leave) to observe a religious holiday or festival may be unlawful. If permission is refused the employer must be able to justify its decision by reference to reasons unrelated to the worker’s religion or belief. A clear policy setting out rules relating to the timing of holidays and how requests will be dealt with will help employers.
Awarding extra annual leave relating to length of service
This could be indirect discrimination on grounds of age and/or sex.
It may be age discrimination because younger employees are much less likely than older employees to have, for example, ten years’ service. However, rewards of this type are allowed if the qualifying service is 5 years or less. For rewards dependent on more than 5 years’ service a fairly employer-friendly justification test applies, which permits such rewards where the policy fulfils a business need or is a benefit to the business, for example, by encouraging loyalty or rewarding experience.
A similar problem may arise under sex discrimination and equal pay provisions. Women are more likely to take career breaks to bring up children and therefore their length of service is likely to be shorter than that of men. Employers must rely on objective justification if the use of length of service as criteria in awarding extra holiday (or any other benefit) has a disproportionate impact on women.
If you have any questions or require any further information then please feel free to contact us.
