Archive for the ‘Holidays’ Category
By Liam - Wednesday, September 24th, 2008
This case is a reminder that it is possible to vary some parts of the Working Time Regulations 1998 (which provide for, amoungst other things, entitlement to holidays and holiday pay) by means of a “Relevant Agreement”. This can include a contract of employment.
The working time regulations provide for the employer to give the employee notice that he is to take a holiday of double the duration of the holiday. For example, four days’ holiday requires eight days’ notice.
This means that if an employee has a one week notice period and has four days’ holiday remaining, the employer would not, under the WTR, be able to require the employee to take that holiday in their notice period. This would leave the employer paying the employee notice pay in his notice period and accrued holiday pay on termination.
However, where a contract gives an employer the right to insist on an employee taking their accrued holiday entitlement in their notice period, this does not fall foul of the Working Time Regulations because the contract is a Relevant Agreement that overides the WTR (and does not have to follow the normal rules about contracting out of statutes and compromise agreements that apply to many employment statutes).
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By Sarah - Tuesday, January 29th, 2008
The Advocate General has handed down his opinion in what was previously known as Ainsworth. This is of particular relevance for our clients who are awaiting the decision. The last position, we have all been following, was that employees off on long term sick did not accrue holiday whilst off on long term sick. This came from the Court of Appeal decision in 2005.
Tha matter was appealed to the House of Lords who referred the case to the ECJ. The Advocate General (whose opinion is normally followed by the full court) has indicated that this decision may well be reversed. Whilst it is common sense that employees cannot take holiday whilst they are off sick, the AG believes that holiday does accrue whilst they are off sick so that if an employee leaves they are entitled to compensation for that holiday even where the employee was off sick for a whole 12 months!
I am not sure that can be right if employees cannot roll over holiday from one year to another under the WTR. Of course these provisions apply to not just employees but the wider category of employees. We will have to watch this space. The full opinion can be found here.
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By Liam - Thursday, November 8th, 2007
The EAT has handed down an interesting judgmenton the subject of rolled up holiday pay. Although the DTI, or BERR to use their new name, say rolled up holiday pay is unlawful (based on a case in the ECJ last year - see http://www.dti.gov.uk/employment/employment-legislation/working-time-regs/rolled-up/page29030.html) the EAT have held that if rolled up holiday pay is paid (which it recognises it shouldn’t be), the amount paid can be offset against any other holiday pay that may be due so the rolled up holiday pay could completely extinguish any right to holiday pay at the time holiday is taken.
It should be noted that rolled up holiday pay can only be offset against other entitlements where there is a mutual agreement for ”genuine payment for holidays representing a true addition to the contractual rate of pay for time worked.” In other words, there must be evidence of a transparent agreement whereby the employee receives an addition to his basic pay for each period worked - for example, £X per hour plus £Y holiday pay or £X per hour of which Y% is holiday pay. It will not be sufficient to take basic pay and say that it includes an element of holiday pay - the holiday pay must be extra.
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By Liam - Friday, October 19th, 2007
The first increase in statutory holiday entitlement for 9 years came in to force at the beginning of this month.
The change still appears to be causing some confusion. We have had two queries on the same point today alone.
Before 1 October 2007, Workers (not just employees) were entitled to four weeks’ holiday per year. This four weeks (or 20 days for most, 5 day per week, Workers) could include bank holidays i.e. 12 days’ holiday plus 8bank/public holidays was lawful, as was 20 days’ holiday with no entitlement to bank/public holidays.
After 1 October 2007, Workers are entitled to four point eight weeks’ holiday per year. This equates to 24 days’ holiday for most, 5 day per week, Workers. This still can include bank/public holidays i.e. 16 days’ holiday plus 8 bank/public holidays is lawful, as is 24 days’ holiday with no entitlement to bank/public holidays.
Employees whose contracts entitle them to 20 days’ holiday plus 8 bank/public holidays will be disappointed to hear that they are therefore not entitled to more holiday. Indeed, even in 2009 when holiday entitlements are set to increase again, they will not be entitled to more holiday!
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By Liam - Tuesday, October 9th, 2007
We have recently received a query from a client whose accountant has told them that they have to give their employees more holiday following changes in the law earlier this month.
This was, erm, interesting advice, given that this client already gives their employees 25 days holiday per year, in addition to bank holidays. As reported by this blog here, the Working Time Regulations right to paid holiday did change on 1 October 2007. However, the change only affected employers who gave employers fewer than 24 days’ holiday (including bank holidays). Therefore our client was not affected by the change and had they listened to their accountant, would have generously given away extra holiday to all their employees….ooops!
PJH Law deals exclusively in employment law. We don’t dabble in other things and that’s why we receive excellent feedback and why we have never claimed on our PI insurance - we stick to what we are good at!
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By Sarah - Monday, October 1st, 2007
Today marks the second date of changes in the employment law calendar.
From today the National Minimum Wage for over 22’s is £5.52 (up from £5.35). The development rate for 18-21’s is £4.60 (up from £4.45) and the development rate for 16-17 year olds is £3.40 (up from £3.30).
The new rules on statutory minimum holiday also take effect from today so that the minimum holday entitlement is 24 days including bank holidays.
The next date for the bi-annual changes in the employment calendar will be 1st April 2007.
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By Liam - Tuesday, September 18th, 2007
As reported by this Blog back in January, the Working Time Regulations minimum holiday entitlement is increasing on 1 October 2007 from 20 days’ holiday entitlement per year to 24 days’ holiday entitlement per year. The 24 days can include bank holidays in the same way as the current 20 days can include bank holidays.
Where the 1st October falls part way through the holiday year of an employer who only allows employees 20 days holiday per year, that employer will have to work out how much extra holiday his employees are entitled to for the part of his holiday year falling after the 1st October.
Help is at hand with this extremely taxing bit of degree level mathematics calculation from the DTI who have produced a Ready Reckoner which will recalculate holiday entitlement based on when an employer’s holiday year starts.
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By Sarah - Thursday, August 16th, 2007
Following on from our topical blog yesterday, we have had a few enquiries from people wanting to clarify the position with bank holidays. Everyone has read about changes to the statutory minimum holidays and there is confusion out there.
To set the record straight holiday entitlement for employee’s is governed by your contract of employment provided it meets or exceeds the statutory minimum. If an employee does not have a contract of employment, then their holiday entitlement is the same as the statutory holiday entitlement.
The current statutory holiday minimum is found in the Working Time Regulations and is 4 weeks (20 days) holiday per annum. This includes bank holidays. The Government is looking to increase this to 24 days (4.8 weeks) with effect from 1st October 2007. A further increase to 28 days (5.6 weeks) was set to take effect in October 2008 but this has been delayed to April 2009 due to concerns on the impact on the workplace.
So if you are an employer and you offer 20 days holiday plus bank holidays you will not see any change as you already offer more than the minimum. If you only offer 20 days including bank holidays then this will need to increase.
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By Sarah - Wednesday, August 15th, 2007
Research has shown that the UK is set to remain at the bottom of the EU Holiday league despite the proposed changes to holiday entitlements due to come into force.
The stats include bank holidays and were produced by Income Data Services. Apparently, Germany is top of the league with 39 days, France has 35 and Italy 32 days. Our current rate is 20 days set to increase to a maximum of 28 days.
For those that do get generous holiday entitlements, another survey has shown that 2/3 of senior exec’s check their emails whilst on holiday. Apparently, it is our curiosity rather than necessity that keeps us logged on.
I have to confess that I too am guilty of such practices and there is probably an element of curiosity involved. I remember being in the Dominican Republic over Christmas and New Year with a big Tribunal in early January and logging onto my emails remotely just to check everything was alright. Another employer client of mine has just gone away and told me that I can call her on her family holiday to deal with a particular issue whilst she is away.
We must all remember however why we have holidays - for health and safety, a chance to take time off and come back refreshed and full of beans!
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By Liam - Thursday, April 5th, 2007
A topical decision with Good Friday and Easter Monday rapidly approaching, the Scottish court of session (an apellate Court in Scotland whose decisions are not strictly binding in England, but are pursuasive) has confirmed that if you don’t normally work on a Monday, you are not entitled to bank holidays that fall on a Monday (isn’t life tough). The same applies to bank holidays falling on any other day. The case can be found at http://www.scotcourts.gov.uk/opinions/2007CSIH25.html and is a failed appeal from the decision of the EAT sitting in Scotland that this blog reported back in October http://www.pjhlaw.co.uk/blog/holidays/i-dont-like-mondays/.
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