We’re all going on a summer holiday

Claire Hollins, Partner

With the school holidays now in full swing, many employers are navigating a wave of holiday requests as employees look to cover their childcare responsibilities. While formal education is taking a hiatus, it’s the perfect opportunity to brush up on the top 10 holiday related issues we’re most frequently asked by clients.

1. Can I refuse holiday requests?

Yes. Employers can serve a counter-notice in response to a request to take holidays. However, the notice must be given at least as many days before the date the holiday was to start as the number of days being refused. For example, if the employee requests to take four days and you want to refuse one day, you must give at least one day’s notice before the holiday starts, regardless of which day you are refusing the request for.

2. Can I insist that employees take holiday at a particular time?

Yes. Notice at least twice as long as the number of days (or part-days) holiday to be taken must be given prior to the start of the holiday. So if you require an employee to take five days holiday, you have to give at least 10 days’ notice.

3. What if too many employees want to take time off at the same time? Can I give priority to employees with school age children?

You can refuse a request (see above) and should ensure that you have in place a procedure for requesting, approving and refusing holidays which can include ‘first come, first served’. Requests should be dealt with consistently and there is no obligation to prioritise employees with children when deciding which requests to accept.

4. Should I allow employees who are off sick to take holidays?

Employees who are off sick can take holidays if they wish to do so. There is no obligation to allow this but where an employee is on long term sick leave it often makes sense to permit this to avoid the employee having significant periods of leave to take on their return to work.

5. What if an employee is unwell whilst they are on holiday?

Where any of the four weeks holiday an employee is entitled to under the Working Time Directive is ‘affected’ by sickness, the employee is entitled to reschedule it.

6. What should I pay employees when they are on holiday?

Employees should be paid their ‘normal’ pay. For employees who are salaried, and their pay does not vary, this is straightforward. Where employees work variable hours or their pay varies depending on the amount of work done or the time they work, their ‘normal’ pay should generally be calculated by reference to their remuneration during the previous 52 weeks. For these employees the position is not always straightforward and specific advice should be sought.

7. How do I work out the holiday entitlement for employees engaged on zero hours contracts?

The holiday entitlement for employees who work ‘irregular’ hours can since 1 January 2024 be calculated based on 12.07% of the actual hours worked in the particular pay period. Employers can also either pay holiday when the holidays are taken (calculated by reference to the average pay over the previous 52 weeks) or pay rolled up holiday pay as a 12.07% uplift to their pay when they work (and not pay them when they take the holidays).

8. An employee has requested to change their working hours over the summer, do I have to agree to this?

Employees have the right to make two flexible working requests in a 12-month period. Under the statutory scheme any change requested and agreed is a permanent change to the employee’s working pattern so they would have no right to revert to their previous hours of work and would need to make a further request. There is no obligation to agree to the request but there are specific rules around considering the request and the reasons for rejecting it. Where a request is rejected, employees will also have the right to appeal.

9. Do I have to agree to periods of unpaid leave?

Employees who have responsibility for a child can take up to four weeks’ unpaid parental leave per child each year. A maximum of 18 weeks’ leave in total per child can be taken before the child’s 18^th birthday. In certain circumstances the leave can be delayed for up to six months.

10. What about employees who don’t use their annual leave entitlement?

Subject to any terms of the employment contract or holiday policy, generally holidays must be taken in the year in which they accrue. However, where the employee has been unable to take the holidays due to sick leave or family related statutory leave, they may be carried over. In addition, where the employer has denied the employee the right to paid leave, failed to ensure that they have a reasonable opportunity to take it or warned them of the consequences of not taking it, the leave may also be carried over.

We provide expert advice on holidays, leave and employment law generally. If you or your organisation need advice, please contact us.