EMPLOYMENT LAW

Employer's question: employee holiday entitlement over Christmas period

Question: We have an employee who has a number of days of holiday entitlement left and they have asked to book the whole Christmas period off. This is a very busy time of year for the business and we need all staff to work. Can we decline the request, even if this means they won’t be able to take all of their entitlement by the end of the year?

Answer: Under the Working Time Regulations 1998, all workers are entitled to take 5.6 weeks of annual leave and will have a claim against their employer if they are not permitted to exercise that right. For any additional contractual annual leave entitlement, over and above the statutory minimum, there may be a bit more flexibility, depending on the wording of the contract. You can calculate statutory holiday entitlement using the tool on the government website here.

Therefore the first question is whether your employee is looking to take statutory holiday, or whether their remaining days of leave are an additional contractual entitlement, or indeed a mixture of the two.

If the leave your employee wishes to take is part of their statutory entitlement, it becomes an issue of whether or not they were “permitted” to take their leave. This will depend on the circumstances and, importantly, what communications they may have been sent earlier in the year. If all staff were made aware at the start of your holiday year that no holiday requests will be permitted over the festive period and reminders sent to encourage them to take holiday earlier in the year, then it would be difficult for them to argue that they have not been “permitted” to take their holiday entitlement. If they had the opportunity to take it earlier and were made fully aware of the circumstances, but chose not to take it, then that was their own choice.

However if the position was not made clear to them, or if their circumstances were such that they were unable to take annual leave earlier in the year, then declining their holiday request at this point is likely to mean that you have not permitted them to exercise their statutory right and will be in breach of the Regulations. It may be that you are able to agree with them that their untaken holiday can be carried over and taken early in the New Year, however while this may reduce the risk of the employee bringing a claim against their employer if they agree, it does still remain in breach of the law.

If the annual leave in question is company enhanced holiday entitlement, there may be more flexibility to suggest carry over of those days, however you should check your contract wording carefully.

If a busy Christmas period is a regular feature of your business, timely communications to your staff will be key to avoiding these problems.

If you have any further queries about this issue, please contact our employment team.

About the authors


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Will Walsh

Partner

Expertise in the employment aspects of company restructures and strategy, including international elements.

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