We consider some of the more difficult and unusual features of the statutory holiday regime, in particular the position in relation to the accrual of holidays during periods of absence and discrimination risks.
The Working Time Regulations 1998 (WTR) were introduced to protect the health and safety of workers by ensuring that they take a minimum number of days’ holiday. Some of the basic principles contained in the legislation are:
• All workers are entitled to a minimum of 4.8 weeks’ annual leave per holiday year (due to increase to 5.6 weeks on 1 April 2009). In addition to the statutory right to annual leave, employers can award additional holiday entitlement to their workers, and this will be determined by the employment contract rather than set out in legislation
• The WTR set out the default procedure for requesting, requiring or refusing annual-leave requests, although again it is likely that institutions will elaborate upon these arrangements in a contract or applicable policies
• It is not possible for employers to substitute their obligations to provide workers with statutory holiday by making payments in lieu of holiday. The only exception to this rule is that leavers have a statutory right to be paid in lieu of any untaken statutory holiday upon termination of their employment, and the WTR provide a simple formula for calculating this
• There is no statutory entitlement to time off during public holidays, and it is for each institution, in accordance with its annual-leave policy, to decide whether a worker will be allowed or required to take leave on a public holiday.
Accrual of holiday during absence
In May 2008, we reported that the European Court of Justice (ECJ) had been asked by the Court of Appeal to determine whether workers who are on long-term sick leave accrue statutory holiday. While we still await the ECJ decision, the current legal position is that a worker is not entitled to statutory annual leave in respect of a leave year if he or she has been absent from work during that entire year. However, there still remains some uncertainty in relation to this issue, and it is hoped that further clarification will be provided by the ECJ. Any entitlement to the accrual of non-statutory holiday will be governed by a worker’s employment contract or any relevant policy of the institution.
Uncertainty may also arise in relation to the accrual of holiday during periods of family-related leave. Again, employers will have regard in the first instance to the relevant terms of the contract of employment or any relevant policy. However, the statutory right to accrue holiday will depend on the type of family-related leave in question. For example, an employee on ordinary maternity leave will be entitled to accrue holiday in the normal way, but the position may be different during a period of additional maternity leave, depending on when the period of maternity leave began.
Finally, potential discrimination risks may arise when requesting and considering requests for holidays. For example, a worker may request time off at a particular time of year to observe a religious holiday or festival. Employers will be obliged to consider requests carefully, having regard to the protection of staff under the Employment Equality (Religion or Belief) Regulations 2003, and any refusal should be capable of justification. A clearly drafted policy on annual leave will assist employers in dealing with such issues.
Diane Gilhooley is HR expert in the education team at Eversheds.