Please note that the information set out below is a statement of the basic requirements of the current legislation and you should contact me on 07850 208701 or by email on rcwhrsolutions@talktalk.net to discuss any particular cases in detail.

All ‘workers’ are entitled to a minimum of 5.6 working weeks holiday in a complete holiday year, which equates to 28 days for workers who work five or more days per week. All employers are under a legal duty to keep records of staff holidays.

Employees who take holidays should be paid their normal rate of pay when on holiday.

If an employee joins your organisation part way through your holiday year or leaves before the end of it, then they are again entitled to a pro-rata amount of paid holidays according to the length of time they have been employed by you. If an employee has overtaken the amount of holiday they have accrued during the holiday year, you can recoup the cost of the overpayment of holiday entitlement by deduction from any monies you owe to them (E.g. wages/salary, bonus, sick pay etc.), provided that you have a clause in your contracts to recoup the overpayment for holidays.  By the same token, if they have not taken all the holiday entitlement accrued, then you must pay them the balance of untaken holidays in their final wage or salary payment.

The 5.6 week minimum entitlement can include all the public/bank holidays. If your business operates on a public/bank holiday, then, subject to contractual terms, you can insist that your employees work on such days and receive alternative days’ holiday instead. Part time staff should not receive fewer holidays (pro-rata) than full time staff, irrelevant of whether or not they are contracted to work on any of the public/bank holidays, except where the holiday entitlements are greater than the statutory minimum entitlements and there is a clause in the contract that allows the employer to only pay for bank or public holidays that would fall on the employee’s normal working days. However, it is worth considering such actions, since contractual clauses of this nature may unintentionally be detrimental to working parents and therefore lead to claims of indirect discrimination.

If your employees are required to work varying hours on an on-going daily/weekly basis; you will then need to calculate their average pay over the previous twelve weeks worked to determine how much to pay the employee for a respective day/week. Furthermore the method of calculation used should also be denoted within the employees’ contracts to enable them to calculate their own pay. If your staff have a fixed contractual number of hours each week but top up their hours with voluntary overtime, you may not need to average their working hours, but will still need to pay them their normal basic wage for the time off work on holiday.

You cannot pay in lieu of for any of the statutory minimum holiday entitlement (except if the employment has terminated before the end of the leave year). If you have a written agreement in place, you can carry forward up to 1.6 weeks to the following leave year, but these days must then be taken in that year. If you give more than 28 days holiday in a year, then you can make whatever provision both parties agree to with regard to carrying forward holidays or paying in lieu of untaken holidays, for any days in excess of the statutory minimum entitlements.

You should let your staff know how much notice you require from them when submitting holiday requests. However, if they give you more notice than you require, you should still consider their request. Responses to holiday requests should be made in a timely fashion. It is good practice to ask your staff to submit their holiday requests in writing; such as on a holiday request form.

Sickness and Holidays

The law is quite clear on the fact that holidays still continue to accrue whilst an employee is off work sick or injured irrelevant of the length of the absence. If an employee falls sick or is injured either whilst on holiday or prior to taking a holiday, then the absence must be treated as sick leave and the holiday re-scheduled, if the employee requests the time as sick leave and has followed the company’s normal absence reporting procedure. Even if it means carrying the leave forward into the next leave year.

Activities whilst absent from work sick or injured

A common question is whether or not it is acceptable for an employee to go on holiday or nights or days out whilst off work sick or injured. The reasonableness of their action is dependent upon the reason for the absence and the activity they choose to pursue. Whether an employee is on paid or unpaid sick leave, you should not prevent them from pursuing any activities so long as the activity they choose to pursue has no bearing on their reasons for their sickness.

A blanket restriction on employees going on holiday, nights or days out etc., while they are off sick may be at risk of unlawfully discriminating against workers in certain circumstances.

For example, workers who have a mental health illness, such as depression, etc. may benefit from such activities and it would probably be seen as a reasonable adjustment to permit this. Also, if you employ people whose country of origin is not the UK the opportunity to travel to visit friends or family in their country of origin during their sick leave may result in indirect race discrimination on the grounds of nationality under the Equality Act 2010.