Tuesday, 05 Jul 2011
Life's a beach - Part 5
In the last in our series of email updates on holidays we take a look at how they interact with some other specific employment rights.
Q: An employee has recently returned to work after five months’ sick leave. Now he says he is entitled to his full 5.6 weeks’ paid holiday for the year. Is he right?
A: Statutory holiday entitlement under the WTR continues to accrue during periods of sick leave. This means that a worker does not lose any of their entitlement to statutory annual leave through being on sick leave whether they are sick for all or part of the leave year. However, employers should be free to restrict any enhanced entitlement from accruing.
It is also worth mentioning that a worker can receive paid holiday even while on sick leave. For a worker on long term sick who has exhausted their sick pay they will still be paid in respect of their statutory holiday entitlement at their normal rate of pay. Conversely, a worker can choose not to take a pre-arranged holiday if they are on sick leave. Instead, they can take their holiday at a later date, in the next leave year if necessary.
Q: Do employees lose entitlement to holidays during periods of family-related leave?
A: The answer depends on the type of leave being taken.
Maternity, adoption and paternity leave – employees on maternity leave accrue statutory and contractual leave in the normal way, as if they were at work. According to the WTR, holiday entitlement cannot be carried forward if the period of leave extends into a new leave year. However, for a woman to lose holiday in this way simply because she has taken maternity leave is unlawful under EU discrimination law therefore employers would be advised not to adopt a practice of refusing the carry forward of holidays. There is similar case law in relation to those taking parental leave. Employees, or at least those taking maternity and parental leave, should be encouraged to use up their holiday before their leave starts.
Parental leave – an employee on parental leave does not benefit from contractual holiday arrangements. They will continue to accrue statutory holiday entitlement under the WTR but may lose some of their entitlement if the period of leave extends into a new leave year.
Q: Do we have to grant a worker’s request to take all of their holiday entitlement in one go?
A: The simple answer is ‘no’ and contracts of employment or holiday policies often stipulate that a maximum number of weeks can be taken at any one time.
However, it would be a good idea to ask why so much leave is being requested before making any decision, as employers need to be aware of potential religion or belief discrimination or harassment under the Equality Act 2010 and that a refusal to approve a request for annual (or unpaid leave) to observe a religious holiday or festival may be unlawful. If permission is refused the employer must be able to justify its decision by reference to reasons unrelated to the worker’s religion or belief. A clear policy setting out rules relating to the timing of holidays and how requests will be dealt with will help employers.
Q: Our holiday policy states that employees will receive an extra day’s holiday after 10 years’ service. Is this age discrimination?
A: It could be indirect discrimination on grounds of age and/or sex.
It may be age discrimination because younger employees are much less likely than older employees to have ten years’ service. However, rewards of this type are allowed if the qualifying service is 5 years or less. For rewards dependent on more than 5 years’ service a fairly employer-friendly justification test applies, which permits such rewards where the policy fulfils a business need or is a benefit to the business, for example, by encouraging loyalty or rewarding experience.
A similar problem may arise under sex discrimination and equal pay provisions. Women are more likely to take career breaks to bring up children and therefore their length of service is likely to be shorter than that of men. Employers must rely on objective justification if the use of length of service as a criterion in awarding extra holiday (or any other benefit) has a disproportionate impact on women.