Holiday time: your right to a break

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?

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