Employers are required to provide all their workers paid holiday as per the Working Time Regulations 1998. Sounds simple, but in practice many in HR will know that working out how many days leave the worker should get and the amount they should be paid can be anything but simple.

One of the problems is that the Regulations are intended to implement EU legislation, the Working Time Directive, yet there are key differences. For example, it has been firmly established that the prohibition on carrying over leave in the Regulations cannot prevent an employee who has been too sick to take their leave from carrying it over.

Can the employee carry over the 5.6 weeks holiday provided for in the Regulations or just the 4 weeks in the Directive? 

The recent case of Sood Enterprises Ltd v Healy held that only the balance of 4 weeks leave could be carried forward. The prohibition on carrying over in the Regulations was valid in relation to any entitlement that exceeded the 4 week minimum guaranteed by the Directive.

How about holiday pay where the employee regularly works overtime? Should the holiday pay take account of all hours worked?

The answer was thought to be that it depends on whether the overtime was compulsory. However the recent case of Neal v Freightliners Ltd has now cast doubts on that approach as it suggests the key question was whether pay was intrinsically linked to performing tasks under the employment contract. This led to the conclusion that the holiday pay should take into account the extra hours and the premium rates paid for overtime even if it was voluntary. The decision has been appealed but pending the further hearing the risks are clear.

Where an employee resigns or is dismissed they will be entitled to be paid in respect of accrued but untaken leave. Any clause in a contract that provides for no payment on termination will be void.

Can the contract of employment provide for just a token payment of say £1?  In the recent case of Podlasiak v Edinburgh Woollen Mill Limited it was held that it could not. The Employment Judge considered that the payment had to be calculated to reflect normal pay in order to put the worker in a comparable position to that which they would have been in had they exercised the right to take paid annual leave during employment.

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This blog is intended only as a synopsis of certain recent developments. If any matter referred to in this blog is sought to be relied upon, further advice should be obtained.