Employment law advice about holiday pay
Employment law provides full-time employees and workers with a minimum of 5.6 weeks’, or 28 days, holiday with pay. Employees have statutory holidays irrespective of how long they have been working. These rights apply to part or full-time, agency workers, workers with irregular hours and workers on zero-hours contracts.
Despite these holiday entitlements, employment law advice has been needed by employers and employees due to disputes that, in turn, have led to employment tribunals. While employment tribunal judgements have actually changed the accepted legal position. One such judgement has meant that all of a worker’s pay, for instance bonus pay, should be included in normal holiday pay.
So, this is another area where advice from employment law solicitors can help to avoid mistakes.
A part-time worker, who is employed 3 days a week, is entitled to a holiday time that is proportionate to both hours worked and the statutory 5.6 weeks. In this case, this is 3/5 of 5.6 weeks. Shift or term-time workers, alongside those working irregular hours, are entitled to proportionate paid time off work for every hour they work.
Employees can build up, or accrue, holiday time during maternity, paternity and adoption leave. They can also use their holiday time while off sick and request holiday at the same time as sick leave.
Employment law solicitors would advise that the level of pay during holidays is governed by the worker’s normal pay. Some employers and agencies include holiday pay with normal hourly pay. If holiday pay is not clearly set out and itemised in a payslip, employment tribunals could judge this to be unlawful.
Some types of workers do not have statutory holidays but can have contractual holidays. These are: military personnel, police officers, and officials in the civil protection services.
Employment law cases have decided that an employer is not required to give Bank or public holidays as paid leave and can chose when these days are included as statutory leave.
Although most contract of employments do state that Bank holidays are included as part of the 28-day allowance. The employer can also choose to provide more than the legal minimum and will need a policy to apply it consistently to all workers.
A workforce agreement can allow an employee to ‘carry over’ some his or her holiday time from one year to another. A good employment solicitor would advise an employer to specify such agreements in the employment contract. An employee will build up one twelfth of his or her holiday time each month.
If an employee resigns from their position, they can take the holiday time that they have accrued. An employer can choose to financially compensate a resigning employee and also financially reclaim holiday pay if necessary.
Employers fix the start and end of the ‘holiday or leave year’, the period in which holidays can be taken. The start will also be the beginning of the period over which holiday time for the year is build up. For instance, an employee may begin building up holiday time from 1 January and that will end next year on 31 December.
An employer cannot refuse an employee any holiday at all, but they can say when. An employer can:
- – refuse holiday requests during busy periods
- – make an employee take holidays at certain times such as Christmas
- – say how much holiday can be taken at one time.
Employment law solicitors would advise employers to notify an employee of a holiday request refusal in advance of the holiday. So, if the holiday is for 10 days, the employer should tell the employee 10 days before the start of the holiday. The employer also needs to provide a reasonable reason for the refusal the holiday
Once again, employment law advice would be that Christmas and Bank Holiday should be set out in a contract of employment. Nonetheless, an employer can shut their business over Christmas and Bank Holidays even if they were open in previous years.
If an employer wants to make changes to holiday entitlements, an employment solicitor would advise that a workplace’s custom and practice should be taken into consideration. While, in the absence of workplace agreements or what is set out in a contract about Christmas and Bank holidays, an employer:
- – does not have to give employees time off
- – can order an employee to take time off, and
- – might not pay employees for such time.
The best employment lawyer would advise an employer to use the employment contract, or a written statement, to explain a worker’s holiday entitlements, or contractual holidays. The contract or statement should provide enough information for the worker to be able to calculate their holidays.