With forecasters predicting yet another disappointing British summer, a significant number of employees from Yorkshire are expected to pack their bags and jet off for a holiday with a better climate.
However, following changes in employment contracts and time worked by employees being reduced to part-time roles, many employers may be unsure of their staff’s current holiday entitlement. Steven Willey, HR and Employment Law Consultant with Yorkshire Law firm, Last Cawthra Feather offers advise on the ruling by The European Court of Justice to determine annual leave.
“Clearly the amount of holiday an employee gets is related to their hours of work. A full-time employee will get the maximum leave; a part-timer will get a proportion of that.”
However, what happens when a full-time employee elects or is required to take on a part-time role instead?
Steven adds: “This is without a doubt one of the main areas of confusion for employers when it comes to holiday entitlement. During the unpredictable economic climate many employees have, and continue to be asked to reduce their working hours part way through a year, thus creating a notable grey area with few employers understanding the law and little in the way of a uniformed approach that they could use as guidance.
“Nevertheless, the new ruling by The European Court of Justice should clarify this considerably. It states that if an employee, for example, reduces their contracted hours from five days a week to three their future leave entitlement will reduce to 60 per cent of the full-time entitlement.”
The further question The European Court of Justice tackled in this hearing was whether it was lawful to reduce holiday already accrued prior to a reduction in hours.
Steven continues: “The answer may seem obvious – that what has already been earned can’t be taken away, but in the UK the Working Time Regulations indicate that the entitlement to annual leave is calculated at the point where the employee actually takes their leave. Therefore if they are part-time at that moment, their entitlement should be worked out on those hours, without reference to the hours they may have been on earlier in the leave year. In fact the Court ruled that accrued but untaken annual leave cannot be lawfully reduced.
“There is still, however an area of misinterpretation, as this only applies where the employee had been “unable” to take their leave. The Court did not explain what “unable” means in these circumstances, however common sense suggests the employee would need to have requested leave and been told they could not take it. Simply choosing not to go on holiday will not enable them to take advantage of this decision.
“Of course one situation where the employee clearly cannot take leave is where they are on maternity leave – because taking holiday will bring the leave to an end. The employee will generally therefore take it at the end of her holiday, or soon after she returns to work.
“Since a significant proportion of returning new mothers ask to reduce their hours this decision will be important in confirming that all the annual leave they have accrued at full-time rates must be honoured even if they then reduce their hours.”
Last Cawthra Feather is a leading law firm and has offices throughout Yorkshire. It now has 12 partners and 115 employees. Visit www.lcf.co.uk for more information.
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