Annual leave and holiday pay

Taking annual leave

Annual leave should be taken with the agreement of your employer. There is no legal right to choose when to take your annual leave; your employer will need to balance your right to take leave against the needs of the service and to maintain appropriate staffing levels. 

You should check any local policies in place as normally there is a clear process you must follow when booking annual leave. Generally, you are required to give notice to the employer of when you wish to take leave. In absence of any specific local policy, the notice period should be at least twice the period of the leave to be taken so if you wish to take two weeks off, you should give four weeks’ notice. 

Your employer can refuse your request for annual leave, but they must notify you of this within a period equivalent to the period of leave. Your employer should also act reasonably when dealing with annual leave requests; for example, they should operate a fair process for dealing with multiple requests for the same day off.

Your employer can also require you to take all or any of the leave to which you are entitled at specified times, provided you are given prior notice. Check your contract for further information.

If you have followed your contract and policy on annual leave, and you have obtained the employer’s consent, it may not be reasonable for the employer to unilaterally cancel your leave. This would only be allowed if the contract or local agreement permitted such a cancellation. If your employer did this without any such provision in the contract or in the absence of any emergency situation, e.g. a pandemic, then you could have a claim for breach of contract (including recovery of holiday expenses already incurred).

If your employer cancels your annual leave:

• check your contract
• check that you have followed local policy
• if it was formally agreed, discuss the matter with your manager.

If the matter is not resolved, please contact us.

If you don't take all of your statutory holiday entitlement during your leave year, your employer may allow you to carry over the left over days to the next holiday year. You must take at least four weeks’ holiday a year, so only holiday on top of this can be carried over. Arrangements for carry-over of contractual annual leave (over and above the statutory minimum entitlement) will be dictated by your contract and/or local policy.

Every worker whether part-time or full-time is entitled to statutory paid annual leave. Since April 2009, workers have been entitled to 5.6 weeks annual leave.

To calculate statutory annual leave entitlement, multiply the number of days you work a week by 5.6. For example, if you work a five day week you would be entitled to 28 days annual leave a year:

5 days x 5.6 weeks = 28 days per annum.

The above is the minimum right to paid holiday, but your employer may offer more than this in your contract or terms and conditions. This is known as your contractual (as opposed to statutory) annual leave.

Contractual annual leave entitlement may not be less generous than the statutory provision. Contact us if you are being denied either your statutory or contractual leave rights.

There is no automatic statutory entitlement to bank and public holidays. If you are given a paid day off for a bank holiday your employer can count this as part of the 5.6 weeks statutory annual leave entitlement. You should therefore check your contract of employment for your annual leave entitlement.

It is best practice for part-time staff to receive the same amount of public holiday annual leave as full time staff, pro rata.

For example, a member of staff works three days a week on Tuesday, Wednesday and Thursday for six hours per day. This totals 18 hours per week. In this workplace, full time workers work 37.5 hours a week over five days. The average working day over a five day week is 7.5 hours. Full time staff receive 60 hours bank holiday leave in total (7.5 hours x 8 public holiday days).

The part time member of staff works 18 hours a week. 60 hours, divided by 37.5, multiplied by 18 is 28.8. The part time member of staff should therefore receive at least 28.8 hours of public holiday leave a year. This may be taken at any time in agreement with the employer.

If this best practice is not followed, it is potentially a breach of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (available from www.legislation.gov.uk).

However, some employers may not give full time workers a day off if they do not usually work on a public holiday day. For example, they may not give an annual leave day for a public holiday which falls on a Monday to a full time worker contracted to work five days a week, Tuesday to Saturday. In such cases, not giving the part time worker public holiday annual leave may not be unlawful as the part time worker is not being treated less favourably than a full time worker.

For more information on the rights of part-time workers, please see our guidance on part-time workers.

The following entitlements are taken from section 13 of the NHS Terms and Conditions of Service Handbook. This entitlement is for a full- time worker. Part-time staff receive a pro rata amount of annual leave and public holiday days.

• on appointment: 27 days leave and eight general public holiday days
• after five years service: 29 days leave + eight days general public holiday days
• after 10 years service: 33 days leave + eight days general public holiday days.

If you have previous reckonable service in the NHS this will also be counted towards your annual leave entitlement. For more information please see our guidance on Agenda for Change.

In 2014, an Employment Appeal Tribunal ruled re Bear Scotland v Fulton, Amec v Law and Woods v Hertel, that employees' non-guaranteed overtime pay should be factored into annual leave pay. 

Please note:

• this decision applies only to the minimum 4 weeks' leave granted under the Working Time Directive, not the additional 1.6 weeks under the Working Time Regulations;
• claims for arrears of holiday pay would be out of time if there has been a gap of more than three months between successive underpayment.

You should check your contract of employment if you are unsure of your employer's approach to paying you for additional hours worked. For more information on how recent case law might apply to your circumstances, please see the guidance from ACAS. 

If you work in the NHS, section 13.9 of the NHS terms and conditions states that pay during annual leave will include regularly paid supplements, including any recruitment and retention premia, payments for work outside normal hours and high cost area supplements. Pay is calculated on the basis of what you would have received had you been at work. Please see the NHS employers guidance on overtime payments and pay during annual leave for further information. 

If you  believe you have been underpaid, discuss this with your employer and ask for a breakdown in writing. If you are in dispute with your employer, contact us for more advice.

You should be paid annual leave at your normal rate of pay. Therefore if your normal rate of pay includes regular enhancements, these could be seen to be part of your normal rate of pay. Your employer should have a policy covering pay during annual leave.

If you work under Agenda for Change terms and conditions, your pay on annual leave is covered under section 13.9 of the NHS terms and conditions of service handbook. This states:

"Pay during annual leave will include any regularly paid supplements, including any work outside normal hours and high cost area supplements. Pay is calculated on the basis of what the individual would have received had he/she been at work."

You should check your bank contract for information on how annual leave for your bank work is calculated.

Sickness

ACAS guidance - Holidays and holiday pay

TUC publication: Working time, breaks and holidays - Know Your Rights