If a member of staff wishes to take a holiday normally they ought to give notice in writing of their intention to take any leave. The minimum notice needed is equivalent to twice the length of time of the holiday they are asking for. If for any reason the employer is not able to let the employee take the time off the employer must notify the employee in writing within a further time period equivalent to the length of time of the holiday request. Employers may decide that they want to fix some or all of the holidays. If you do you will need to give notice in writing to each worker, which should be at least equivalent to twice the length of time of the holiday to be fixed.
Payment for holidays should be made at the same rate as worker’s normal pay and calculated on the basis of the employee’s standard hours of work. If there are no standard hours of work or the rate of pay varies, holiday pay is calculated on the basis of the average pay received by the worker in the preceding twelve weeks.
If the employer decides to offer additional days over and above the statutory minimum, they are free to make their own arrangements for the contractual holiday extra to the statutory minimum.
A relevant agreement (or contract of employment) will need to be created. This can either be a workforce agreement, a collective agreement with a recognised trade union, or any other agreement in writing between you and your workers which is legally enforceable (for example a written employment contract).
Employers are not allowed to exclude part-time employees, casual staff and the self-employed from the minimum holiday entitlement described in our earlier article. As with the chip shop case, complaints about holiday entitlement can be made to an employment tribunal. Staff can make claims of automatic unfair dismissal if they are dismissed for asserting their rights under the Working Time Regulations. The usual two years’ service required for an employee to claim unfair dismissal does not apply for this type of claim.
Employers must ensure that they have relevant agreements in place covering the holiday year, deduction of excess holiday pay entitlement upon termination and notification of holidays and refusal of holidays, or the default provisions in the regulations will apply. If there is no relevant agreement on the holiday year, the employer may well be faced in time with each employee on a different holiday year. Where current holiday rules operate in any way such as to deny a worker any entitlement under the regulations, the regulations will prevail. An employer cannot argue that overall its scheme is more beneficial to the worker.
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