The Ultimate Guide to Statutory Holiday in the United Kingdom
This guide covers the right to holiday under the Working Time Regulations 1998 in the United Kingdom. This guide does not address the payment for the holiday which is a separate right to the right to take holiday.
The guide is broken down into a number of parts:
- Who is entitled to statutory holiday?
- What is the entitlement to holiday?
- What is the holiday leave year?
- How does the right to take holiday work?
- Practicalities of taking holiday and giving notice
- Part-time workers and atypical working
The law on holiday is complex. The Working Time Regulations 1998 are over 20 years old and interpretation of the Regulations is subject to a number of court decisions both at a European and domestic level.
You should ensure that you take legal advice specific to your circumstances. The content of this page should not be taken as legal advice.
The information on this page was last updated in March 2021.
Who is entitled to statutory holiday?
The right to holiday applies to 'workers'. This should be contrasted with rights, such as the right to not be unfairly dismissed, which apply only to 'employees'.
Who is and who is not a worker is also the subject of much debate. It is a fair assumption that the only types of person outside the scope of the WTR are those providing services via their own limited company - commonly known as personal service companies or independent contractors.
For most employers, in the UK, this means that the for the vast majority of individuals working for them, the WTR and the right to holiday will apply. There are, however, certain categories of workers who are not excluded or partially excluded from rights under the WTR:
- certain categories of seafarers;
- crew members in civil aviation;
- children who are still school age.
There is no minimum period of continuous service needed to qualify although workers who start work part way through a leave year will have their entitlement pro rated.
What is the entitlement to paid holiday?
Contrary to what might be commonly said, the right to holiday is not to 28 days. Nor does it include a right to take public holidays as holiday. The right under the WTR is to a total of 5.6 weeks' annual leave in each 'leave year'. This 5.6 weeks is comprised of:
- a basic entitlement of 4 weeks' annual leave (20 days for a full-time worker). This corresponds to the rights under the EU Directive; and
- an additional entitlement to 1.6 weeks' leave (eight days for a full-time worker) which is a right under UK legislation only.
The fact that the two rights stem from different bodies means that they may need to be treated differently. Decisions of the European Court of Justice on matters of interpretation of the Directive will only apply to the entitlement to 4 weeks' leave and not the additional 1.6 weeks.
The introduction of the additional 1.6 weeks' leave was in response to a common practice where employers would provide 4 weeks' paid leave, inclusive of public holidays. This meant that for businesses which shut on public holidays, the workers would only have 12 days' leave which they could freely take throughout the rest of the year.
So, whilst the additional 1.6 weeks' leave has its roots in the treatment of annual leave as it applied to public holidays, it is not a right to take the public holidays as 'holiday'.
What is the holiday leave year?
The right to paid holiday applies in any given 'leave year'. A leave year starts on the date set out in an agreement between the worker and the employer. Or, where the employer has a collective bargaining arrangement, it may be in a collective agreement.
Where there is no relevant agreement then the holiday year begins on the date on which the worker's employment began. This has a number of practical problems as the larger the workforce the more variety in the leave year and how holiday is managed.
In most cases, an employer will wish to specify a common leave year.
How does the right to take holiday work?
During the first year of a worker's employment, they will accrue holiday at the rate of 1/12th of their entitlement per month. In addition, unless permitted by their employer, for the first year of their employment the worker cannot take more holiday than they have accrued.
After the first year of employment, the worker can take all their entitlement in one period at the start of the year if they so wish. This would be subject to the notice requirements under the WTR.
Carry forward of leave
The WTR 1998 create a "use it or lose it" approach to the basic 4 weeks' holiday. That is, the worker must use their entitlement in the leave year to which it relates or lose it. Case law has created certain exceptions to this for long-term sickness, maternity leave and where a worker cannot take leave for reasons beyond their control.
A specific exception has also been created by law in response to the COVID-19 pandemic.
The ECJ has stated that leave can only 'expire' if the employer has been diligent in informing the worker as to their rights and to the possible loss of entitlement.
The additional entitlement of 1.6 weeks may be carried forward if set out in an agreement between the employer and worker.
Practicalities of taking holiday and giving notice
A worker must give notice to their employer that they intend to take holiday. The minimum notice period for taking leave is twice the duration of the leave requested. As an example, if a worker wanted to take 3 days' leave, they would need to give 6 days' notice.
Similarly, an employer may give notice requiring a worker:
- to take holiday on days specified by the employer. This is commonly used in the case of Christmas shutdowns; or
- not to take leave on specified days.
The notice period required from an employer varies depending on the content of the notice. In the former case, the notice period is the same as required from a worker but in the latter case (instructing the worker to not take leave), the notice period is equivalent to the period of leave.
The interaction of these requirements makes clear that where a worker has given the minimum notice to take a week's leave (i.e. 2 weeks' notice), the employer has 1 week in which to make a decision on that request. Any rejection of the request in the week leading up to the leave would be too late to be valid.
Part-time workers and atypical working
When considering statutory holiday for part-time workers, it is useful to come back to the basic principle that the worker is entitled to be off work for 5.6 weeks.
If their normal working week is 2 days, then they are entitled to receive 2 * 5.6 days' holiday.
It is important to note that part-time workers cannot be treated less favourably than a full-time worker and this is relevant in two distinct ways:
- Firstly, if full-time workers are entitled to holiday above the statutory minimum then part-time workers should also receive a corresponding pro-rata uplift.
- Secondly, part-time workers may be unfavourably treated in relation to bank holidays. If a part-time worker does not work Mondays but that day is offered "in addition" to full-time workers when it is a bank holiday, the part-time worker will miss out. Employers should be mindful to ensure that part-time workers receive a corresponding uplift.
Particular problems arise with casual or zero-hours contracts where the worker may work varying patterns. A practical approach is to accrue a proportion of a day for each day worked.
Assuming there are 232 working days in a year and a need to accrue 28 days (or a proportion thereof), a worker would accrue 0.12 days per day worked (28/232).
This formula can be used to accommodate any number of days by simply increasing the entitlement and reducing the days available during which it might be accrued. As an example, to accrue 33 days, the relevant rate would be 33/227 = 0.15 days accrued per day worked.
Rolled up holiday has been suggested as a possible way in which to deal with the difficulties of zero-hours or casual workers. This is not straightforward and it is questionable if the practice is now lawful.
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