Looking ahead to the holidays
Rights to holiday leave and pay are one of the most common employment queries to CAB. This article will focus on the statutory entitlements to holiday leave and pay just before we enter the Christmas holiday period.
Under the Working Time Regulations 1998, most workers have a statutory right to 4.8 weeks' paid holiday (from April 1, 2009, to 5.6 weeks).
Some workers, depending on their contract, may be entitled to more than the statutory amount of holiday.
If the worker's contract gives them less paid holiday than the statutory entitlement, the statutory entitlement applies.
If an employee works five days a week, 4.8 weeks means 24 days' holiday (28 days' from 1 April 2009).
If it is more than five days a week, their statutory paid holiday is capped at 28 days.
For example, if an employee works six days a week, 4.8 weeks means 28.8 days' holiday, but this is capped at 28 days.
If it is fewer than five days, the statutory amount of days is calculated on a pro-rata basis.
There is no general statutory right for a worker to take bank holidays or public holidays, with or without pay.
In cases in which a worker is given bank or public holidays off and is paid for them, they will count towards their entitlement to statutory holiday unless the contract specifies that the bank or public holidays are given in addition to statutory holiday.
If an employer chooses to give workers bank and public holidays in addition to statutory paid holiday, then part-time workers for that employer should be offered the same entitlement to bank and public holidays on a pro-rata basis.
This means that a part-time worker who works three days per week and is entitled to paid bank holidays on top of their 4.8 weeks' paid leave, should be entitled to paid leave on three-fifth of the bank holidays in the year.
They would have to take other bank holidays out of their statutory entitlement.
Whether an employee has the right to take off Christmas bank holidays will depend on the contract.
This means that whether an employee has the right to take off Christmas bank holidays will depend on what it says in the employee's contract.
If there is no express contractual term, a term may be implied by custom and practice if the employer has regularly given staff time off on public holidays over a number of years.
If there is a term in the contract which says that an employee may be required to work over Christmas and the employer requires the employee to work but they refuse, they will be in breach of contract.
A worker may ask to take any leave to which they are entitled by statute when they choose, provided they give their employer the correct notice.
However, the employer has a right to refuse the request, provided the employer gives the correct notice. An employer can require a worker to take all or any of the holiday that they are entitled to at a specific time, provided that the worker is given the correct prior notice.
If there is no relevant agreement between an employer and a worker as to the notice to be given before taking holiday the amount of notice which must be given must be at least twice as long as the period of leave to be taken.
Part-time workers and workers in their first year of employment are covered by the Working Time Regulations in the same way as other workers.
A worker in their first year of employment is subject to special rules about how their holiday accrues.
The amount of leave which may be taken builds up monthly in advance at the rate of one twelfth of the annual entitlement each month.
Further information is available from your local CAB or from the Department for Employment and Learning by telephoning 028 9025 7580 or from their website at www.delni.gov.uk/er.
Regardless of whether you are on holidays or not over the festive season I wish you a happy Christmas and every success in 2009. Enjoy your sprouts!
Siobhan Harding is an information and policy officer with Citizens Advice.