We explain how this year’s Easter holiday dates means that some employers may fall foul of the statutory minimum provisions for annual leave in the Working Time Regulations 1998 (WTR).
Background
The WTR provides for a minimum of 5.6 weeks of annual leave in each holiday year. This amounts to 28 days of paid holiday per holiday year for someone working five days a week. The 28 days’ paid leave may include bank and public holidays.
In some cases, employment contracts state that the employee has the right to 20 days’ paid holiday per holiday year in addition to bank and public holidays, meaning that the bank and public holidays will count towards the annual leave allowance. As there are 8 bank and public holidays per calendar year in England and Wales this usually means that the person will receive 28 days’ paid leave in total.
Who will be affected by this issue?
However, this year Easter falls in late March, which is earlier than usual, and next year Easter falls in mid-April. This means that in 2016/2017 employers in England, Wales and Northern Ireland with a holiday year which runs from 1 April to 31 March (or from 6 April to 5 April) will not be complying with the statutory minimum holiday provided for under the WTR if their employment contracts state that employees are entitled to 20 days’ holiday per holiday year in addition to bank and public holidays.
The way that the Easter holiday dates fall in 2016 and 2017 means that such employees will benefit from having two extra days of paid holiday in the current leave year (1 April 2015 to 31 March 2016) but will be two days short of the 28 day statutory minimum in the next leave year (1 April 2016 to 31 March 2017).
Employers will not usually be in breach of contract by permitting employees to take 20 days’ paid holiday plus the bank and public holidays falling within that holiday year. However, they will be in breach of the WTR in respect of the 2016/2017 holiday year if they do not provide full time employees with the 28 days’ statutory minimum holiday entitlement in any holiday year (and an equivalent pro-rated amount for part time workers).
What should affected employers do?
Affected employers are likely to need to top up their employees’ holiday allowance to ensure that they receive the 28 day statutory minimum entitlement to paid holiday in the holiday year which runs from 1 April 2016 to 31 March 2017 (or from 6 April 2016 to 5 April 2017).
Longer term solutions should also be considered to avoid the issue arising again in the future. These could include seeking workers’ agreement to change the wording of employment contracts or changing the holiday year itself.