Holiday Entitlement (part 2)
In my blog earlier this week I talked about carrying over unused holiday to the next leave year. Read on for more information about the circumstances in which an employee might be able to carry over unused holiday to the next year and sometimes beyond.
As I stated previously, most workers have a right to a minimum of 5.6 weeks’ paid holiday each year. This equates to 28 days for a full-time employee, including bank holidays. Under the Working Time Regulations, 20 days out of your 28 day entitlement should be taken in the leave year in which it is due or else it is, potentially, lost. The remaining 8 days may be carried forward with the agreement of your employer. If you receive more than 28 days’ leave you may be allowed to carry that forward too.
Your employer can allow you to carry forward unused holiday, whether accrued under the Working Time Regulations or under your contract if you do not wish to take it in the relevant leave year, but your employer cannot force you to carry over statutory holiday.
There are however, circumstances in which case law has established that employees should be allowed to carry over unused statutory holiday to the next year and sometimes beyond that:
If you are on sick leave
If you have been unable to take your Working Time Directive holiday (that is your four weeks’ annual leave entitlement stipulated by the Directive, not the additional 1.6 weeks granted by UK law) in the year in which it accrued because you have taken sick leave, your employer must allow you to carry that over. You should ask to be allowed to carry over your untaken entitlement.
If you are on long-term sick leave your employer is allowed to limit carry over. As a guideline, any holiday not used up within 18 months of the end of the leave year in which it accrued is lost.
If you are on maternity leave
If you have been unable to take your statutory holiday in the year in which it accrued because of maternity leave, your employer must allow you to carry it over to the following year.
If you have been told your leave will be unpaid
This may deter you from exercising your right to leave and in such circumstances the right to any untaken entitlement under the Working Time Directive will carry over, potentially until your contract terminates. This might happen if your employer believes (wrongly) that you are an independent contractor who has no right to paid holiday.
If you have not had an effective opportunity to take your Working Time Directive entitlement
Your employer would need to show that it had given you sufficient information about your holiday entitlement and your potential loss of untaken entitlement at the end of the leave year. If you did not have this information your entitlement will carry over. Note though that if you could have requested paid leave and simply chose not to, this is not the same as having no effective opportunity to take leave and therefore you will have no right to carry it over.
How can LincsLaw help?
For more information on holiday rights please contact us on 01522 440512 or 01522 440515 (direct dial) or visit our website at www.lincslaw.co.uk.
Specialist Employment Solicitor
Lincs Law Employment Solicitors