16 October 2015
Employment Rights & When Your Employer Says You Can’t Take Holiday
In the UK, all employees and workers are entitled to take a minimum of 28 days’ paid holiday every year, including public holidays (pro-rata for part-time workers). 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. You’re entitled to holiday regardless of what you do for a living.
Largely, the “when” and “how” we exercise this right is left up to our employer to lay down the rules. This is usually 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 a recent blog on employment rights and holiday visit: Holiday Pay to Include Workers’ Average Commission.
Your holiday rights
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 to this, 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’re back at work. But beyond these rules, you’ll need to refer to the employment policies and procedures that apply at your place of work. As a basic guide, it’s likely you’ll 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’s covered, as many businesses couldn’t function if all workers went on leave at the same time. Therefore, there may be a “first come, first served” rule, or restrictions around the number of days or weeks that you can take off consecutively. If you feel that your employer isn’t treating you as fairly as your colleagues, it may be a part of a wider campaign of unfair treatment. In this instance, you may need 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, especially if you’ve been unable to resolve this with your employer directly. Any informal discussion should focus on the fact that you need a break and the concerns that you might have over your health and safety if a holiday isn’t 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 breaks they’re entitled to and for it to be fully paid. It transpires that some employers may have been underpaying holiday pay, such as those who pay overtime, shift allowances and commissions, and unrelated expenses during work time that aren’t paid during holiday time.
This may give rise to individuals having legal claims for an unlawful deduction from their salary or wages when on holiday. Potentially, these claims can go back a number of years, so in some cases, this could be costly for employers to resolve and valuable for you.
To prevent historic claims for unpaid allowances and commissions, employers might not allow holidays and therefore not pay anyone any holiday pay for a period of three clear months, and then change the basis for paying for holiday. Therefore, if you've 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.
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 would need to justify why it’s imposing this requirement.
When to seek legal advice
You may want to seek legal advice as soon as possible if:
- 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.
- There are changes being made to your holiday policy or commission/overtime/variable pay policy.
- You’re being prevented from taking holiday leave over a stated period.
However, before you seek the help of a solicitor, you may want to try to solve these issues with your employer. You could try having an informal chat with your employer. You may also want to check if your employer has a formal grievance procedure you can follow.
If talking to your employer and making a formal grievance doesn’t work, you can take your case to a tribunal. You’ll first need to notify the Advisory, Conciliation and Arbitration Service (Acas) - an organisation that can provide independent support for employment disputes.
It’s worth noting that there are relatively short time limits for bringing claims in the employment tribunal, so you should seek expert legal advice as soon as you can.
How Slater and Gordon can help
If you need help regarding your employment holiday rights at work, don’t hesitate to contact Slater and Gordon Lawyers. We’re perfectly placed to assist you when it comes to pursuing a claim against your employer.
Our employment solicitors are highly trained with the knowledge, resources and experience needed to handle your case. Our experts are professional yet friendly in their approach, working closely with you every step of the way. We appreciate that initiating legal action can be daunting, but you can trust us to treat your case with the utmost compassion and sensitivity at all times.