In the majority of cases, employees and employers work together; staggering paid holidays to cause minimal impact to the business. Unfortunately, there are circumstances where the wishes of both parties clash. It therefore makes sense to know your legal position regarding when and how to take paid holidays.

Simple holiday request procedure

In a perfect world, requesting a paid holiday should be fairly straightforward:-

• Consult your employment contract for the terms and conditions
• Apply to take a paid holiday, giving your employer the appropriate degree of notice

There will be occasions where you need to take an emergency holiday. In the majority of cases employers will be sympathetic and they will usually find a way to help.

Entitlement to paid holidays

To recap from our previous article on paid holiday entitlement, you are entitled to paid holidays as a worker. This term includes:-

• Employees
• Apprentices
• Casual workers
• Agency workers
• Zero hour contract workers

The situation regarding the self-employed is a little less clear. However, you may well be classed as a worker if:-

• You carry out the work personally, i.e. it is not passed to anyone else to do
• The work is not part of your self-employed business

It is also worth noting that when taking paid holiday, you should be paid 100% of your normal pay.

When can you take your holiday?

There are two main factors to consider with regards to holiday periods:-

• When your employer’s “leave year” begins
• If you are restricted from taking holidays at certain times of the year

We will now take a look at these two issues in more detail as there are a number of factors to take into consideration.

When does your employer’s leave year begin?

Holidays are allocated on a rolling 12 month basis or part of if you start employment partway through the leave year period. There are three common leave year periods which include:-

• Tax year
• Calendar year
• Company financial year

While these are the three most common leave years, there are no restrictions over which 12 month period your employer uses.

Finding details of your employer’s leave year

In a perfect world, you’d expect details of your employer’s leave year to be included as part of your employment contract. However, this is not always the case. You may be able to find details of the leave year:-

• In your employment contract
• As part of your employer’s general employment conditions
• Within a specific document covering your employer’s holiday policy

If you have any difficulty finding details of your leave year, you should contact your HR Department or, with smaller employers, the individual in charge of employment terms and conditions.

On the rare occasion there are no specific details regarding your employer’s leave year, it will default to:-

• The 12 month period from the day you started work with your employer
• On 1 October if you started employment before 1 October 1998

It is very rare to default to any of these two scenarios as it can become complicated if all employees are on different leave years.

Carry over paid holidays

The default position with regards to paid holidays and the ability to carry over into the next leave year is very straightforward. Your employer is not obliged to pay you for your remaining holidays or allow you to carry them over. However, many employers are sympathetic to those who have been unable to use their full holiday allocation for whatever reason. As a consequence, they may allow you to carry over a number of holidays.

Where your employer is refusing to allow/act on a valid holiday request, with the appropriate notice period, this is very different. In theory, a degree of negotiation should allow you to at least carry over unused holidays. On the rare occasion that your employer is refusing your holiday requests and ability to carry over, you can make a formal complaint. Negotiation is the best way forward but this is not the only way forward.

Unable to take full holiday allocation in leave year

There will be occasions where you have not been able to take your full holiday allocation within the company’s leave year. Some of the more common reasons include:-

• You were on sick leave
• You are on maternity leave
• Your employer refused your holiday requests

Thankfully employees have a degree of legal protection via employment regulations when it comes to carrying over unused holidays. It is important to be aware of your rights especially if your employer is refusing to accept your holiday requests.

Restrictions on holiday dates

At first glance, placing restrictions on periods when employees can take their holidays seems rather unfair. That said, some companies are extremely busy at certain times of the year and it may be detrimental to their business to reduce staff numbers due to holiday requests. These restrictions should be part of your employment contract (or part of other agreements relating to your employment) and therefore public knowledge.

There are also occasions when your employer will instruct you to take holidays such as:-

• School holidays if you’re in the teaching profession
• Periods when the business is closed, i.e. Christmas
• If you have not used your full allocation and the leave year end is approaching

Again, these conditions should be specified in your employment contract/related documentation so that everybody is aware of the situation.

There may be occasions where your employer is forced to close for a period of time, perhaps renovations or difficult trading conditions. In this scenario, your employer is legally obliged to give you notice of at least twice as long as the holiday period in question. So, if all employees are forced to take five days holiday, they should be given at least 10 days’ notice.

Requesting holiday leave

It is very important to be aware of process for requesting holiday leave when you join your new employer. This process tends to be defined within your employment contract or else part of the general employment conditions. These conditions supersede the default regulations which are as follows:-

• Giving holiday notice period, twice that of the holiday request. If you request one weeks holiday then you have to give two weeks’ notice

The majority of employers will specify that you fill in a formal holiday request form which creates a paper trail. Whether a formal form or some kind of communication such as email, it is important have the request is recorded in case there are any issues further down the line.

Can your employer refuse your holiday request?

While there are times when holiday dates cannot be changed, in general, employees and employers tend to work together. There is a formal process if your employer has decided to refuse your holiday request. This could be for a number of reasons such as:-

• Short staffed, detrimental impact on business
• You have used your holiday allocation

So, if you have requested one weeks’ holiday then your employer is obliged to inform you of their refusal at least one week before your holiday starts. If they fail to give you sufficient notice, you are entitled to:-

• Take your planned holidays
• Receive full pay

For many employees this can create a moral dilemma because a degree of inflexibility could impact your long-term working relationship with your employer. On the flipside, if your employer fails to abide by the regulations then you could argue that they will need to accept the consequences. Not a nice situation to be in!

There are various legal protections to stop your employer from penalising you in this type of scenario. Whether they work in practice is another question.

If your employer gives you sufficient notice that they have refused your holiday request, you should not take your holidays. Legally, this will be classed as misconduct and could have potentially serious consequences for your future employment. Speak to your employer!

Continued refusal of your holiday requests

On occasion we have seen disagreements regarding holiday entitlement which tend to revolve around the self-employed. There are various self-employed scenarios where you could be classed as a worker. In this situation, you would be entitled to holidays along the lines of any other employer.

While not a common scenario, you may need to enter a period of conciliation to resolve the issue. If you choose this path, the conciliation process must start within three months less one day of the date your holiday should have started. If this process fails, assuming you have the relevant proof to back up your entitlement claim, you could, as a last resort, start legal proceedings.

Where you believe there is an element of discrimination regarding the way you have been treated in the workplace, this opens up other legal avenues.

Holiday entitlement and coronavirus

At this moment in time the UK economy is frozen as a consequence of the coronavirus pandemic. While employment regulations have still been maintained, we have seen some temporary adjustments with regards to holiday entitlement.

There are some occasions where your employer may not be legally obliged to pay/accept your holidays which include:-

• The business is extremely busy as a consequence of the coronavirus
• A significant number of the workforce are on sick leave
• Employees are furloughed and financial restrictions prevent your employer from paying holiday pay

Like so many issues between employers and employees, there needs to be a degree of flexibility between all parties. At the end of the day, if holiday requests by various employees might cause the business significant harm, how does that benefit anybody?

Summary

While the process of requesting a holiday is fairly straightforward on the surface, if you dig a little deeper it does become a little more complicated. There are rules and regulations to protect employees and employers. Thankfully, by far and away the vast majority of issues are resolved on an amicable basis. However, where there are disagreements there are a number of statutory protections to take into account.