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Holidays at short notice

11 March 2010

Under the Working Time Regulations, the statutory holiday must be taken in the holiday year it is due. Contracts often require staff to give reasonable notice before taking a holiday. Even if their contracts say nothing, the statute allows employers to insist on advance notice that is twice the length of the requested holiday.

Mitie Security Ltd

In the case, Mr Lyons was a security guard for Mitie Security Ltd, working at various sites. Approaching the end of his holiday year on 31 March, he had nine days’ holiday in hand. His contract stated that it had to be taken during the holiday year and could not be carried over or be paid in lieu. Employees were required to submit holiday requests at least four weeks in advance wherever possible but the contract said requests at shorter notice would be considered on their merits and subject to staffing levels.

As Mr Lyons had no work scheduled for the rest of the month, he contacted Mitie on 6 March, asking them to treat nine days during March as a holiday. When he later found he had not been paid for this leave, he raised a grievance and subsequently resigned.

Statutory holiday

He argued that his entitlement to the statutory holiday was absolute and nothing could take away his right to it. Mitie argued that employers must be allowed to require employees to follow a procedure when requesting holiday, including advance notice, otherwise how could they monitor staffing levels and ensure they were not undermanned.

The EAT agreed with Mitie. They said there can be situations where leave will be lost provided that the procedure operates during the whole leave year and an employer does not act “unreasonably, arbitrarily or capriciously” when operating notice provisions.

If leave is requested at short notice and it is not possible to accommodate it, the employer does not have to agree to the request. Care must be taken to avoid unfairly exercising discretion over such requests. That could lead to a successful claim, not only for the lost holiday pay but also on the grounds that the employee’s contract had been breached and that he has been constructively unfairly dismissed. As always in employment law, a careful path has to be trodden through the eggshells!

For advice on managing employees’ and their absence requests, please contact our employment and business immigration team.

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Jenny Hawrot LLB (Hons)
Senior associate, solicitor
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Jenny Hawrot
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