Annual Leave entitlement

Some definitive advice.
The daily rate of holiday pay for a salried worker is claculated by dividing his annual salary by the number of WORKING days not calendar days. If the worker has no normal working hours holiday pay is calculated as an average of the previsou 12 weeks working pay. The average overtime is NOT included in the calculation, this is so even if the employee is contractually bound to do overtime. where commission is payable this is also excluded from the calculation. Bamsey & Others v Albion Engineering [2004] IRLR 457 CA, Evans v MAlley Organisation Ltd t/a 1st Business Support [2003] IRLR 156 CA. Your friendly lawyer.

Technically yes, your friendly lawyer.

On the subject of annual leave, if a company decided to close early one day (i.e Powercut / bad snow) would those on annual leave have a legal right to then get some time back? and if so those on ssp would they then be entitled to full pay for a few hours / half day depending on when the company shut?

Miriam

I pro-rata holiday for all employees. Additional/extended holiday over and above their basic entitlement is granted unpaid for exceptional circumstances. Requests for this must be given in writing and I hold a record of discussion and grant on a case by case basis as it were.
An employee still acrues basic holiday based on their contracted days/hrs of work whilst on additional/extended unpaid leave. I have had instances whereby a person has requested several months off to return home to another country. In this instance I have essentially suspended their contract of employment including basic holiday accrual, sick pay etc...
I am always clear before the leave commences and usually have a signed agreement in place between us and the employee. So far I have not had any issues and I have a multi national workforce in the region of 250 employees. Hope this helps

Miriam.
Sometimes I think you need to look at the situation in court, If you were to say that you gave extra time off to your employees (ensuring that everybody is able to get that time off if required), and that you were doing so for the well-being of your employees, I think it would be difficult for a court to find against you.

That's my feeling, which, of course, could be wrong.

Can't answer your question Miriam, but I hope that someone does proffer an answer. You're effectively talking about a sabbatical aren't you?

A related but slightly different question for those brighter minds than I... We occasionally grant people extended unpaid leave on request - this is not connected to maternity leave, sick leave, etc. and is usually, but not exclusively, to visit family abroad (so could be approaching a sticky area with regards to equality). However, what we have traditionally done is stopped holiday entitlement accruing during this time. Recently though, I've come under the impression that this isn't quite right - if they're still under contract it should accrue as normal, correct? Is there any way around this? Obviously, when we grant extended leave, we do so out of goodwill to our employees but our goodwill doesn't extend so far as to effectively pay them for work they haven't done. Could we have a contractual term that allows for us to pro-rata holiday entitlement on the basis of annual hours for example? Obviously, in cases of maternity, sickness, etc. we would expect the holiday to accrue as normal, this would be purely in relation to discretionary extended leave.

Stringer isn't the end of the matter in regards to WTR. Employers should still note cases such as Khan v McColl, where the claimant lost annual leave that was carried forward - the claimant lost his right to the leave because he wasn't denied the right to take it.

If an employee carries forward leave per Stringer, they must still then use that leave or lose it. It wouldn't be reasonable to save the leave until late into the year, and then claim it if the ability to use it had existed earlier in the year.



Karl Limpert

p.s. Hi Sheena, I rarely post on here these days, but hope you & Ron are well.

Hi Stephen

Taken from direct gov site seems £157 is a generous offer

Who is eligible
For you to qualify for Statutory Paternity Pay, all of the following must apply:

•you must be the biological father or adopter of the child or be the mother's (or adopter's) husband, partner or civil partner or have or expect to have responsibility for the child's upbringing
•you must have continued to work for the same employer without a break for at least 26 weeks by the 15th week before the baby is due, or employed up to and including the week your wife, partner or civil partner was matched with a child
•you must continue to work for that employer without a break up to the date the child is born or placed for adoption
•you must be earning an average of at least £97 a week (before tax)
How much do you get
If your average weekly earnings are £97 or more (before tax), Statutory Paternity Pay is paid for one or two consecutive weeks at £124.88 or 90 per cent of your average weekly earnings if this is less.
How it's paid
Your employer will pay Statutory Paternity Pay to you in the same way and at the same time as your normal wages.

Statutory Paternity Pay is treated as normal pay and so they'll also deduct tax and National Insurance as usual.

There is a definitive answer if a member of staff is unable to use their annual leave due to long term sickness they are entitled to carry it over to the next year.

I think to many people are being blinded by the maternity issue here.

However I would not make an issue of this and look at revising your sickness and maternity terms to cover this otherwise I can see a discrinmination case looming

I'll pass it on Paula, thanks for your input.

Jane I'm sure I've read on the ACAS site something about an employees right to carry forward holiday entitlement to the next year in cases like this. I have to say that there does not seem to be any definitive answer. She should check the terms of her contract.

Thanks Paula, it's not actually one of our employees - it's my daughter, who is a nurse, and has been told she will lose her holiday but is on sick leave until the baby is born so cannot take it. Had it been one of our employees I do let them carry it forward. Just wondered if there was anything concrete I was missing.

thanks paula most helpful information

Jane, there does not seem to be any clear ruling on this. Best practice is to encourage staff to take all their holiday before maternity leave. If this has not been possible then let her carry it forward to next year, usually they like to extend their paid maternity leave by tagging their untaken holidays on to the end. You could try telling her she has lost the untaken days holidays but you will probably have a very disgruntled member of staff on your hands. Stephen, an employer has no legal obligation to pay more than the current rate of £124.88 pw and he has to take full weeks up to a maximum of 2 weeks paid. Of course an employer can decide to top up his spp but has no obligation to do so. Unfortunately he can not be on holiday and on paternity leave so if he needs holiday pay he will have to forfeit his paternity pay.

while everyone is talking about maternity. what about perternity we have an employee who is due to go on perternity leave. however the company have told him he can only be paid ssp of £157 PW is this an acceptable practice? he is being forced to dismiss thier offer and take 4 weeks holiday so he can be paid a wage to suit his needs i.e. morgage, food, baby stuff ect ect. does anyone have any more info on perternity leave and an employees rights

I am unclear on something - if an employee is on maternity leave and has not taken her full entitlement of holiday and this runs into the next holiday year, does the remaining entitlement have to be carried forward to the next year, which logic says it should as there is no possible way she can take it, or is it at the discretion of the employer and she could therefore potentially lose the untaken days? I am struggling to find clarification on this!

Gemma, the law is the law and laws are usually made to stop bad practice.
28 days per year is everyone's entitlement even yours.

I can assure you that when someone is on long term sick possibly without pay it is no holiday. They are sick and cannot work this is not a period of sun drenched beaches and sangria this is people who are seriously ill and sometimes fighting an extreme battle.

Ok so if someone is on njo pay you could pay them the holiday whilst off, but I would think it is better to have a fit employee in 4 days per week if that is how you both want it than in full time for a couple of months and then off again with the right to take action. Much less expensive in the long run

Gemma - I asked if I could take my leave before returning for just the reason you talk about because I knew I would be forced to go on a rehab program where no leave could be taken. i was refused. Then when the rehab was over I was 'told" to take a chunk of it and when I returned found my role within the department had gone because of a reshuffle. I would much rather have not taken any of it either because all I wanted to do was get on with my job and back to normality.
I dont think therefore that it always works to someones advantage but you dont always get a choice.

Kevin, we get an extra two days to compensate for living in Northern Ireland! Its a dirty job but someone has to do it! :-)

My goodness I'm glad that in almost 9 years running a company the longest anyone has had off is 7 weeks (and that was a director).
I'm sorry I know the laws are there to protect people from being badly treated but employees taking their 'entitlement' after long periods of sickness surely results in further lost productivity and huge costs to the businesses involved.
As an employee I would never have had the gall to suggest I need 3 months off in a year to ensure I have got all my accrued holiday following extended sick leave - how the hell could I do my job effectively if I was out of the office over a day a week on holiday ?
I appreciate all businesses couldn't pay the holiday in a lump sum instead but honestly if it was me I'd be happy to agree that I'd already had a great deal of time off and didn't realistically need more than my 5 or 6 weeks entitlement in a year thank you very much.

I was in the private sector and when I "left" I was paid 2 years entitlement. I didn't even ask it was just given. Similar circumstances as Sheena explained but then put on sick leave whilst new position found but never materialised! I believe Stringer was applied in my case as I seem to remember that being mentioned by my lawyers.

I also know somebody else in the private sector who also got paid just over 2 years in similar circumstances. So whether or not Stringer is being applied strictly speaking or just being erred on the safe side - hard to say.

I should have said the days under WTD would be 28 days per year. You cannot be sick and on leave at the same time so bank holidays would count. However this member of staff is contratually entitled to 30 days per year.

This arose due to the fact that year 1 could not take all leave as went off sick in the last couple of months of his leave year.

On return to work on rehab hours (was not allowed to take annual leave employers rules) then his 30 days anual leave was added to year 2.

He then had a period of long term sick due to Disability which meant on his return to work on rehab hours again not allowed to use annual leave during this period he entered year 3 with 57 days leave which he has only just been able to start using although year 4 is only around the corner so to speak.

This is exactly what is allowed and nothing is wrong with the calculation. He could have asked for it to be paid if he had wanted to but this would have caused problems.

Kevin - Of course, you are correct that it does not just relate to the public sector. Although, to date, personally, I have not come across it in the private sector and wherever I have worked flexi time or time in lieu was accrued through genuinely working extra time. In the circumstances I refer to in the public sector I was one of the new snr managers who desperately tried to curb the amount of flexi time that was being unfairly claimed, to no avail. It appeared that across the board nearly everyone was doing the same thing. In addition, I omitted to mention that one of my staff (receptionist), quite apart from her 48 days holiday which included Bank holidays, flexi time and additional time over Xmas/New year, she also took 16 sick days in 1 year, a total of 64 days. In the end I gave up and left!