Did you know your employer doesn’t have to give you bank holidays off? Get the facts on your rights to time off

Looking forward to your holiday this year? So you should be – recent research shows that the average working week in the UK is getting longer and longer, and that over half the working population now feel they have much less leisure time than they did five years ago. With trends like these, it’s all the more important to make sure that you take advantage of any entitlement to holidays and time off.

Who is entitled to paid annual leave?

There are now two holiday entitlement options that an employer can adopt. Either the entitlement to paid annual leave begins on the first day of employment as an agreed and fixed amount.

Alternatively, the employer can use an accrual system whereby during the first year of employment the proportion of the leave builds up incrementally over the year. The amount of leave that may be taken builds up monthly in advance, at the rate of one-twelfth of the annual entitlement each month.

Where this calculation does not result in an exact number of days, the amount of leave that may be taken is rounded up to the next half day. Any rounded-up element is deducted from the leave remaining.

For example:

• A full-time worker who is in his or her third month of employment would have built up 5 days' leave. (The annual entitlement of 20 days multiplied by 3/12 equals 5 days).
• A part-timer who works three days a week and is still in his or her first month of employment would be able to take one day's leave. The annual entitlement of 12 days (four weeks times three days a week) multiplied by 1/12 equals one day.
• A full-time worker who is in his or her eighth month of employment would have built up 13 1/2 days' leave. The annual entitlement of 20 days multiplied by 8/12 equals 13.33 days, which is rounded up to 13 1/2 days.

The not so good news
Unfortunately, you can’t take your holiday whenever you want to.

First of all, you have to give your employer twice as many days’ notice as the number of days’ holiday you wish to book. This means that if you want to take a two-week break, you need to notify your employer four weeks in advance.

Even if you follow this notice requirement, your employer is not under any obligation to comply with your request. Provided that they have given you notice equivalent to the suggested holiday period (i.e. one week’s notice for one week’s holiday), your employer can object to the dates you have requested, and even specify dates of their own choosing. In practice, employers tend to be quite flexible and are unlikely to dictate exact dates for their employees’ leave, but there are exceptions. For example, it is not unknown for factory workers to be required to take their leave when the factory is closed. If you’ve got a written contract, check out whether your employer has other administrative rules about taking holiday – but bear in mind that these rules can’t be more restrictive than the statutory requirements.

The second bit of bad news is that your employer can choose to include UK Bank holidays as part of your four weeks’ annual entitlement. This means that if you are given a day off on a Bank Holiday, you may find yourself with one less day’s holiday for the rest of the year. So-called Bank or Public Holidays are widely misunderstood – in fact, there is no real statutory right to be absent from work on these days at all!

Finally, if you don’t take all of your holidays in one leave year, you don’t have any right to roll over the remaining days to the next, or to claim a payment in lieu. Your ‘leave year’ might be defined in your contract. If not, and your employment began before 1 October 1998, the leave year will run from 1 October; otherwise, your leave year will run from the date on which you first joined the company.Next page: money and freelancers

What if you haven’t used up all of your holiday when your employment ends?
This is the only time that you will be able to claim a payment in lieu – but only in respect of holidays which have been accrued but not taken. The payment due is calculated according to the following formula:

Annual entitlement multiplied by the proportion of leave year already accrued minus the number of days already taken.

Here’s an example. Say a part-time worker is entitled to 16 days’ leave per year, and her employment terminates 9 months into the leave year, by which time she has so far taken 7 days’ holiday. Using the formula she would be entitled to be paid for 5 days’ leave.

16 (days’ entitlement) X 9/12 (9 months out of 12) — 7 (days taken) = 5 days accrued but not taken.

What if you’re not an ‘employee’?
Here it gets even more complicated.

The law in this area doesn’t apply just to employees as we traditionally know them. It is extended to a new category of individual – the ‘worker’. Forgetting the Stalinist overtones, a ‘worker’ is anyone who is employed under a contract ‘personally to perform services’. This can be a standard employment contract, but can also apply to certain categories of freelancer/contractor.

There are no coherent statutory guidelines on this – the basic rule of thumb is that if you contract with a company on a regular basis to perform particular duties, you may well be entitled to paid annual leave.

At one end of the spectrum, individuals who work for a company according to a regular and sustained pattern but on a ‘self-employed’ basis are likely to be covered by the regulations. At the other end of the scale, if you simply produce ad hoc work (eg, a freelance journalist providing copy on an as needs basis), you’re likely to be deemed a ‘genuine’ freelancer and hence fall outside the scope of the law on working time. It’s a bit of a minefield, so if your case falls somewhere in the middle find out more. Why not post on the Know Your Workplace Rights message board for expert help?

Next page: cry freedom

What if your employer won’t play ball?
The vast majority of employers (however grudgingly!) do accept the value and benefits of holidays and are unlikely to try to evade the requirements of the legislation. But if you come up against a reluctant boss, remember you do have an absolutely cast iron right to annual leave. You also have statutory protection if you’re discriminated against or victimised in any way as a result of raising the issue of your entitlement. That said, I know it’s scary to have to put your head above the parapet, so it may be advisable to see if other staff are in the same boat and try to raise a collective grievance instead.

More
Fancy an extended break? Find out about sabbaticals