Most workers have the right to a minimum of 5.6 weeks’ paid leave each year. This amounts to 28 days for a full-time worker. If you are a worker or employee who has not taken your full leave entitlement you may wonder whether you can carry over any untaken leave to the next leave year. In this blog I consider when leave may be carried over.
Introduction
Under the Working Time Regulations (WTR) 1998, a worker is entitled to a minimum of 5.6 weeks’ (28 days) paid leave each year. This reflects:
- the four weeks’ holiday guaranteed by Regulation 13 of the WTR 1998 for a full-time worker working five days a week, plus
- the usual eight public and bank holidays in England and Wales (the additional 1.6 weeks’ leave under Regulation 13A).
Of course, many workers are granted additional leave in excess of the statutory minimum.
Summary
In general, any statutory holiday (i.e. the 28 days under the WTR 1998), may only be taken in the leave year to which it relates and will be lost if not taken by the end of the leave year. However this is subject to various statutory exceptions which differ depending on whether the leave entitlement arises under Regulation 13, Regulation 13A or Regulation 15B. Regulation 15B may apply if you work irregular hours or are a part year worker. The carry over rules are the same as under Regulation 13.
Most of us do not think about our holiday in terms of the relevant sections of the WTR but it is necessary to make the distinction when looking at whether holiday may be carried over.
The general position is that the four weeks’ leave provided for by Regulation 13, may only be taken in the leave year in respect of which it is due. However, it may be carried over if you have been unable to take some or all of it as a result of you taking sick leave or family related statutory leave. You can also carry this leave over where your employer is at fault in specific circumstances.
The additional 1.6 weeks’ leave under Regulation 13A may be carried over if there is a relevant agreement providing for this or in cases where you have been unable to use up your entitlement due to taking statutory leave. These exceptions are explained more specifically below.
It is important to note that your contract of employment or an employee handbook may set out your rights to carry over annual leave, including any annual leave exceeding the statutory minimum. The following, however, is a summary of your statutory rights.
Statutory Leave
You have the right to carry over any of your statutory entitlement (currently up to 5.6 weeks) where you have been unable to take some of your holiday as a result of taking a period of statutory leave. Statutory leave is defined as maternity, paternity or adoption leave, parental leave, shared parental leave, parental bereavement leave, neonatal care leave and carers leave.
You cannot take holiday at the same time as a period of statutory leave, such as maternity leave. You must take it at a different time which can either be before or afterwards. Your holiday may be carried over into the following leave year.
Sick Leave
You have the right to carry over up to four weeks of your leave under Regulation 13, or up to your full entitlement if Regulation 15B applies, if you are unable to take some or all of that leave because you have taken a period of sick leave. You must however take the carried over leave within 18 months of the end of the leave year to which it relates. The right to carry over does not apply to the 1.6 weeks’ additional leave under Regulation 13A.
Employer’s Failure
You have the right to carry over up to four weeks of your Regulation 13 holiday, or your full entitlement if Regulation 15B applies, if your employer fails to:
- Recognise your right to annual leave or paid annual leave
- Give you a reasonable opportunity to take leave or encourage you to do so, or
- Inform you that leave not taken by the end of the leave year will be lost.
If your employer allowed you to take unpaid holiday but did not pay you for that holiday when you had a right to be paid, you can treat that paid leave entitlement as not having been taken and carry it over until your employer gives you an opportunity to take it as paid leave (or failing that, until your employment terminates).
The right to take the carried over leave will last until the end of the first full leave year in which there is no failure by your employer. In practice, this means that if your employer continues to be in breach of its obligations, your leave will carry over and build up indefinitely, potentially until termination. There is no 18-month limitation as there is in relation to cases of long-term sick leave.
Relevant Agreement
The additional leave of 1.6 weeks may be carried forward into the next year if there is an agreement providing for this. This agreement may be your contract of employment or a collective agreement. Your employer may permit the whole of the 1.6 weeks’ leave to be carried over. Alternatively your employer might limit the number of days, for example, allowing carry over of up to five days.
Lincs Law Employment Solicitors Can Help You
If you have any concerns about your right to carry over paid annual leave, you can speak to your employer in the first instance. They may be able to answer your query and reassure you. If you are unsure about your rights relating to carry over of annual leave and would like advice on your own situation, please contact us for a free enquiry on 01522 440512 or via the web chat or contact form on our website at www.lincslaw.co.uk.
Kathryn Bolton
Associate
Specialist Employment Solicitor
Lincs Law Employment Solicitors
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