How Do Contracts, Maternity & Sickness Affect Annual Leave?
Fiona Martin
At this time of year we receive queries from both employers and employees on the subject of annual leave. For many employers, September marks the beginning of the last quarter of the leave year and they find themselves swamped by annual leave requests from employees. Most of these will be fairly straightforward, but it’s worth being aware of certain circumstances where you may want to handle annual leave differently, in the interests of fairness.
Employees tend to contact us throughout the year with queries about being paid holiday whilst on long term sickness and maternity leave.
Bank Holidays: Who is entitled to what?
It’s worth remembering that employees are not automatically entitled to take public holidays off. Statute sets the number of holiday days that each employee is entitled to take, which includes eight bank holidays plus 20 days for full time employees, a total of 28 days. The right to take a public holiday as annual leave depends on the contract of employment. If the contract states that public holidays are included within the annual leave allowance then the employee will not have to work them. If the contract is silent on this point, but custom and practice has consistently been to not require employees to work on public holidays, then equally, the employee may be able to argue that it is a term of the contract of employment that they won’t work public holidays.
If the contract provides for days to be given in lieu of bank holidays, this does not affect the number of days taken, but might mean there is an expectation to work bank holidays; for example, if you work in the hospitality industry where bank holidays are the busiest times of the year.
For the last two years here in England, we have enjoyed nine public holidays a year. We normally have eight. A favourite question from both employers and employees has been “Do I have to honour/have the right to take all nine of them?” Once again, the answer depends on the wording of the contract. If the contract makes a blanket statement such as employees receive X days annual leave and public holidays then yes, all nine days will need to be available. If the contract states employees will receive X days annual leave and eight public holidays or specifies the public holidays e.g. Christmas Day, Boxing Day etc. then you don’t.
Rolling over Annual Leave
Employers should also be mindful of the rights of maternity leavers and employees returning from long term sickness absence. Pregnant women and maternity leavers must not be deprived of any statutory or contractual rights (with the exception of remuneration). If you have a maternity leaver returning to work and you can’t honour the leave she has accumulated during the current annual leave year, we would recommend allowing her to roll it over to the next year or asking her to add it to her maternity leave so as to delay her actual return date. Remember, if the government decide to introduce shared parental leave after the first 18 weeks, then this will also apply to the other parent.
Employees returning to work after a period of long-term absence should be treated similarly. Whilst the European Court of Justice case of Stringer sits at odds with the Working Time Regulations, which stipulate that the statutory annual leave entitlement (currently 28 days per year pro rata) cannot be rolled over, Stringer concluded that in situations where employees have been absent for long periods of sickness, employees should be allowed to carry over any untaken statutory annual leave entitlement and should be allowed to take annual leave during periods of sickness absence if desired.
Furthermore, as it is frequently difficult to determine whether an employee may be suffering from a disability until medical reports have been obtained, you may want to consider honouring any untaken contractual element of annual leave (if you offer employees in excess of 28 days leave a year) for fear of otherwise discriminating.
We have had a lot of queries regarding whether you must honour an alleged period of sickness absence requested during a period of pre-booked annual leave. Again the answer comes down to what your contracts or policy says. If your contracts are silent on the point and you don’t have an established custom and practice, then the answer is probably no, but it may be something you want to consider formally introducing. The greater clarity your contracts of employment and policies provide, the less room for misunderstandings there can be.
Finally, if you want to try and maintain more control over when employees take their leave, do remember that you can make provisions for this in your contracts or staff handbook. If you don’t wish to go down that route there are provisions in the Working Time Regulations which enable you to serve notice on employees to enforce their taking of their statutory annual leave entitlement or to stop their taking of it.
How can Martin Searle Solicitors help?
Employers and employees can find out about their rights through law firms like us who provide free information online. It’s always a good idea to make sure you’re one step ahead so that you don’t inadvertently do anything to your employees detriment to undermine the crucial relationship of trust and confidence.
Our firm has worked with employers of all sizes, from SMEs to those that employ thousands, in both Sussex and across the UK to improve their employment contracts and staff handbooks. It is important to ensure your contracts and policies are up to date and protect your business, both during the duration of the employment relationship and afterwards in the event that a former employee moves to a competitor. Alternatively, if you are an employee and you believe that your rights have been infringed, contact our employment team at info@ms-solicitors.co.uk or call 01273 609911 and ask to speak to Fiona Martin to discuss how Martin Searle Solicitors can assist you.
