It is holiday season again and for many retailers working out what holiday entitlements their staff are entitled to can be a headache. The complexity is largely due to EU law requiring that all workers receive a minimum annual entitlement. Hopefully this blog from Ellis Whittam’s employment law team will help…
Amount of holiday
First of all it is worth noting that all staff, including casual workers, the Saturday boy or girl, the student working during their holidays as well as both regular and full time employees, are entitled to minimum statutory holiday entitlement.
It is always a good idea to clarify a worker’s holiday entitlement in their contract of employment or written terms and conditions of employment so there can be no room for doubt. It is a legal requirement that employees are given a written statement of the main terms, including those relating to annual leave, public holidays and holiday pay, within two months of starting work. Even if there is nothing in writing at all, the custom and practice of the employer in granting holidays is likely to have given rise to contractual rights.
Whatever the contract says or your custom and practice dictates, an employer cannot give employees and workers less than the statutory minimum entitlement of 5.6 weeks’ paid holiday per year and typically most retailers tend to give the statutory minimum. If an employee is not given their minimum paid holiday entitlement they will have a claim in the employment tribunal for the outstanding holiday entitlement.
An employee who works five days per week is also entitled to a minimum of 28 working days’ paid leave a year (which can include any entitlement to public holidays). Someone who works two days a week is entitled to 11.2 working days’ leave. Where someone works on a casual basis, an entitlement of 5.6 weeks is equivalent to 12.07% of hours worked (5.6 weeks ÷ by 46.4 weeks [52 weeks – 5.6 weeks] x 100 = 12.07 %). So, if someone works 10 hours in a week, they are entitled to 1 hour and 12.4 minutes’ paid leave. However, it is unlawful to pay workers rolled up holiday pay. Employees should be paid for holiday when they are off work on leave rather than having it included in their hourly rate. This means the recording of holiday or annual leave entitlements is absolutely crucial.
When it can be taken
Employers should have their own rules about booking holidays, and ideally these should be displayed clearly. A holiday chart is also useful to record the times when staff are off work, and it does help to avoid too many people taking the same period of time off.
If an employee wants to take two weeks’ holiday but there are no formal rules laid down by the employer then the law says that the employee must give twice as much notice as the holiday leave required. This means the employee must give at least four weeks’ prior notice.
If they want to take holiday when other people are off, then the employer can give counter-notice but this must be equivalent to the time off that was requested, that is two week’s notice that the holiday can not be taken.
Bank and public holidays
A worker’s contract should state what the position is with regard to public holidays. There is no right to take holiday on a bank holiday unless the employer has agreed it in the contract or in respect of a specific request for leave on that day, so employers are within their rights to insist that staff work on a bank holiday if that is when their business is open. However, care must be taken when the government announces additional bank holidays, such as the recent one for the Queen’s Jubilee on 5 June. Workers may feel entitled to the day off but if their contract states that they are entitled to “the 8 bank holidays in England and Wales” or the “usual bank holidays”, they can only have the additional day off with the employer’s permission.
Holiday and sickness absence
Another contentious area is sick leave. If an employee is off sick they will continue to accrue holidays during their period of absence. If they had pre-booked a holiday and then fallen sick, they can take the holiday at a later date. However, it is always advisable to make it clear that employees must produce evidence of sickness and follow the usual sickness notification procedures. If the employee is off sick and wants to take holiday (presumably because they only get SSP if they are sick) then get the employee to put their request in writing.
If their contract is terminated, they are entitled on termination to pay in lieu of all the leave they have accumulated while they were off sick going back perhaps two or three years! Employers are advised if any employee does ask to reclassify a period of holiday as sickness, to make it clear that the normal sickness notification rules apply before any payment will be made for the day. SSP is not payable to people on holiday outside the EU.
This blog has been provided by Ellis Whittam. They provide fixed fee employment law and health and safety advice to retail clients nationwide and the company has been recognised by the Best Companies 2012 list which saw its legal practice receive an ‘Outstanding’ accreditation. For more information visit www.elliswhittam.com or call 0845 2268393. Twitter: @elliswhittam