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Employment Rights & When Your Employer Says You Can’t Take Holiday

Sun, surf, sand, ….ah yes … it's that time of year when we all want to switch off the laptop and take a holiday. All employees and workers are entitled to take a minimum of 28 days’ paid holiday, every year, including public holidays.

This legal right is set out in the Working Time Regulations 1998, but individual employers may be more generous and offer more annual leave entitlement than required. Largely the “when” and “how” we exercise that right is left up to our employer to lay down the rules; which will generally be set out in your employment contract or staff handbook. However, the underlying principle for minimum guaranteed annual leave is to ensure the health and safety of workers.

For our most recent blog on employment rights and holiday visit: Holiday Pay to Include Workers’ Average Commission.

The Courts have given a little more guidance and have said that your employer cannot require you to take your leave during what are other rest periods. Further, you cannot be required to take annual leave at a time when you would ordinarily be away from work, such as oil riggers not having to take their annual leave whilst on rest breaks on-shore. 

Nobody should be required to use annual leave when home sick, although you do continue to accrue leave to take when you are back at work. But beyond these rules, you need to refer to the employment policies and procedures that apply at your place of work. As a basic guide, you will likely be required to give your employer twice the length of notice of the holiday you propose to take.

Employers need to balance competing leave requests, to ensure all work is covered, as many businesses could not function if we all went on leave at the same time. Therefore, there may be a ‘first in first served’ rule, or rules around the number of days/weeks that you can take off consecutively. If you feel that your employer is not treating you fairly as compared with your colleagues, it may be a part of a wider campaign of unfair treatment which you need to take legal advice.  

If your employer lays down a general rule, such as “no employee can take holiday for the next three months”, then we suggest you seek legal advice if you have been unable to resolve this directly with your employer informally. Any informal discussion should focus on the fact that you need a break and any concerns that you might have over health and safety if a holiday is not authorised.

This issue is particularly relevant at present. Recently, the law relating to holidays has been in flux. The European Court is keen to preserve the right of workers to take the break they are entitled to, and to be fully paid for it. It transpires that some employers, those that pay overtime, shift allowances, commissions and other variable pay unrelated to expenses during work time that are not paid during holiday time; may have been underpaying holiday pay. 

This may give rise to individuals having legal claims for an unlawful deduction from salary/wages when on holiday. Potentially, these claims can look back a number of years, so could in some cases be costly for employers to resolve and valuable for you.  

One of the tactics that employers might use to prevent historic claims for unpaid allowances and commissions might be not to allow holidays and therefore not pay anyone any holiday pay for a period of 3 clear months, and then change the basis for paying for holiday. Therefore, if you have heard that this is happening in your workplace, it might be worth the holiday of your lifetime (and your colleagues) to speak to an employment Solicitor about it. 

In particular, get legal advice as soon as possible if:
1.    You earn a basic salary plus variable payments (such as a shift allowance, overtime, commission) and when on holiday, you only receive your basic pay
2.    There are changes being made to any holiday policy or commission/overtime/variable pay policy 
3.    You are being prevented from taking holiday leave over a stated period.

A further implication in imposing a “no holidays” rule over a set period is that it could unlawfully discriminate against certain groups of employees. If, for example, your employer is preventing you from taking leave over the summer months, this may impact more on female employees who need to take time off to care for children on school holidays, which could amount to unlawful sex discrimination at work. An employer will need to justify why it is imposing this requirement.

There are clear, and relatively short, time limits for bringing claims in the Employment Tribunal, so you should seek expert legal advice as soon as to you can.

For more information or to speak with an Employment Solicitor call freephone 0800 916 9060 or contact us online and we'll be happy to help.

Slater and Gordon Lawyers have offices in London, Manchester, Liverpool, Birmingham, Sheffield, Halifax, Milton Keynes, Merseyside, Bristol, Cambridge, Edinburgh, Cardiff, Halifax, Newcastle, Wakefield & meeting rooms in Bramhall, Cheshire.

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