4. Holidays (Part 4)
How many holidays should workers get? (Article 10)
- The holiday year will cover the period 1 January to 31 December.
- The holiday entitlement set out in Part 4 of the Order complies with the provisions of the Working Time Regulations (WTR).
- Holiday entitlement depends on the number of days that an employee would be expected to work in the course of a regular working week (see table below). In addition, 2 special holidays are set. Details of these dates can be found on page 6 (article 11).
|Holiday Entitlement |
|No of days worked per week ||No of days holiday per year |
|1 ||8 |
|2 ||13 |
|3 ||18 |
|4 ||23 |
|5 ||28 |
|6 ||33 |
|7 ||38 |
- Where the number of days worked varies from week to week, the average number of days worked per week over a 12 week period should be calculated.
- When a worker begins working with an employer during the holiday year, their entitlement will be in relation to the part of the holiday year still remaining, plus any of the special holidays which fall within the same period.
- During the first year of employment, the number of days holiday that a worker has a right to take at any time is limited to the amount they have accrued at that time.
- Accrual is at the rate of one-twelfth of the annual entitlement at the beginning of each month.
- The WTR make it clear that a worker is entitled to a minimum of 5.6 weeks holiday (28 days for someone working 5 days a week) in a holiday year. There is no provision for payment in lieu of any part of these 5.6 weeks if they are untaken by the end of the holiday year. Payment in lieu will, however, still apply to holidays which are over and above the provisions set by the WTR.
- If a worker's employment is terminated, then they will be entitled to payment in lieu for all holidays to which they are due, calculated up until the date of the termination of employment.
What about special holidays? (Article 11)
- In 2012/2013, each worker will be entitled to 2 special holidays as follows:
- Christmas Day;
- New Year's Day;
- If either of these days falls on a day of the week on which the worker would not normally be required to work, then the next normal working day will be allowed as a holiday.
Is time allowed off for bereavements?
- In the event of the death of a worker's child, parent, spouse, or someone they live with with as if they are married to them (see article 12(2) of the Order for a full definition), the worker is entitled to at least 3 days paid bereavement leave.
What payments are made for the holidays taken by a worker? (Article 13)
- A worker is to be paid for his/her leave according to sections 221-224 of the Employment Rights Act 1996, which determine the amount of a week's pay for the purposes of the Act.
A normal week's pay is calculated as follows:
- For a worker with regular worling hours:
(i) If his/her normal working hours are the same every week and pay for work done in those hours does not vary, a week's pay is what he/she earns in a normal working week.
(ii) If pay varies with the amount of work done in normal working hours (i.e. the number of hours in a working week does not vary), a week's pay is the average hourly rate of pay in respect of the previous 12 weeks.
- For a worker whose normal working hours vary from week to week, a week's pay is the average hourly rate of pay multiplied by the average of their normal weekly working hours over the previous 12 weeks, i.e. based on the average pay received and the average number of hours worked in the previous 12 weeks.
- For a worker with no normal working hours, a week's pay is the average pay received over the previous 12 weeks.
- Overtime: where a worker has normal working hours, overtime pay is counted in calculating a week's pay where it is fixed under the contract of employment, in other words where it is both contractually guaranteed and compulsory. Voluntary overtime can only be included where the worker has normal working hours and pay varies with the amount ofwork done in those hours (scenario (ii) above).
Example: A worker with more than 26 weeks continuous employment is contractually obliged to work 39 hours per week, and for working those hours receives a minimum rate of pay. No overtime is contractually guaranteed or compulsory. The worker regularly works 47 hours a week.
The worker's pay does not vary with the amount of work done in the 39 hours that are contractually agreed. As the overtime is voluntary, a week's pay will be based on remuneration for working 39 hours and not 47 hours.
What happens if a worker has to turn out on a holiday? (Articles 10 and 14)
- If a worker has to work for any part of a day on which it had been agreed that they would be on holiday (excluding special holidays) the following rules will apply:
- the day will not be regarded as a holiday taken ie the worker's holiday entitlement will not be reduced in any way;
- each hour actually worked will be paid at not less than the minimum hourly rate (excluding the additional sum) to which the worker is entitled multiplied by 1.5. A minimum of 4 hours must be paid even if the time worked is less than 4 hours. When more than 4 hours are worked, payment must be made for the actual number of hours worked.
- Different arrangements apply when a worker has to turn out on any of the 2 special holidays. If a worker agrees to work on 25 December or 1 January, the following rules will apply:
- for each hour worked, the worker must be paid not less than 3 times his minimum hourly rate (including the additional sum if appropriate). In these circumstances there is no requirement to pay for a minimum of 4 hours - payment need only be made for the actual hours worked;
- also, if Christmas Day or New Year's Day falls on a day on which the worker would normally work, then the day will count as a holiday taken.
(Note: These rules will apply when a worker who would not normally have worked on one of the 2 special holidays is required to work on the holiday in lieu to which they are entitled, i.e. their next normal working day.)
What happens when the full holiday entitlement is not taken? (Article 15)
- Where a worker has not taken all of the days holiday to which they are entitled by the end of the holiday year, that worker will be due payment in lieu for only the one day which is over and above the entitlement set by the WTR (5.6 weeks).
- Where a worker has not taken all of the days holiday to which they are entitled on the termination of their employment, that worker will be due payment in lieu for any days not taken, including all or part of the WTR entitlement.
- Payments in respect of holidays not taken (subject to the above) should be made no later than the first regular pay day after 31 December or within 7 days of the end of employment.
Who decides when holidays can be taken? (Article 10(8))
- Normally a worker and employer will be able to agree suitable holiday dates between them.
- Where no such agreement can be reached, the employer may give the worker 21 days notice of the date(s) when the holiday can be taken. The employer will allow the holiday to be taken before the end of the holiday year, or before the worker leaves their employment.