Holiday Entitlement: Accrued Holidays and Carryover

Q. An employee's contract of employment states holiday entitlement as 25 days plus 8 recognised public holidays. He was absent from a date in May last year and returned to work in March this year. When calculating his accrued holiday entitlement on return to work might require to include the recognised public holidays - for example, Christmas - that were not taken in his total accrued holidays.

Scott: That question there, Seamus, the only requirement to carry forward leave where someone couldn't take it is only 20 days, is that right?

Seamus: Yes.

Scott: So, it's the working time, EU working time entitlement.

Seamus: That's it. Yes. You're looking at your basic entitlement in terms of your holidays [4 weeks’ or 20 days’ annual leave] but you're not obliged to carry over anything above and beyond that. I suppose the other issue is you're looking at what's the format of those holidays? Are they closure days for the workplace? Is the office actually open those days when other people are working? So, there are sorts of issues to consider too.

Q. Is an employer obliged to permit carryover of remaining contractual holidays when an employee has been off sick and unable to take full allocation or is it only the difference between statutory entitlement and the holidays already taken that must be carried?

Seamus: Okay. Well, I think the important thing here is the word contractual. The first thing you need to do is go back and look at the contract and see exactly what it says in relation to holidays. In general, the position will be that if holidays are permitted to be carried over, they'll only be the statutory holidays. So, it's the difference between the statutory holidays that are left. Important there just to go back and make sure you read thoroughly what the contract says and that you're clear with the employee as well about what their entitlement is.

Scott: So, it could be you snooze you lose on the contractual things because that's in the contract.

Seamus: Yes, absolutely.

Q. Has this been tested in the tribunals here or European case law in relation to the contractual entitlement and can bank holidays be included in the statutory calculation together with days off that the employee has taken?

Seamus: Yes. The statutory or bank holidays, they can be included within the calculation for holidays. I'm not aware of any specific tribunal in Northern Ireland cases in respect of this. That's why we talked about it the last time. We take that cautionary approach when it comes to the holidays because we don't necessarily want to be the first one to challenge this.

Scott: What they have established with the case law is as far as Europe is concerned, it's the 4 weeks or 20 days or whatever it happens to be that's guaranteed, the rest isn't.

Seamus: Very clearly.

Q. A question about trigger points - We also have staff wishing to use annual leave rather than being on sick leave. More often to avoid trigger points in the absence policy, some managers have approved this, others have not. Is there a risk that the lack of consistency applied by management may be deemed discriminatory?

Seamus: Yeah. I think we all aim for consistency across our policies and procedures and how they're applied. We can't be too stringent in that because there may be circumstances where things should be facilitated for other reasons. And exactly where maybe someone is suffering from a disability that you're looking carefully at your trigger points as well and looking at adjustments in those respects. But I think the idea would be if you can keep it consistent, then it's about having a written policy and adhering to that.

Scott: It makes it very difficult if you're going to discipline somebody because they've got absence issues and that person turns around and says, "Hold on, did you see the foreman over in that department over there. They let everybody get away with it," and changed the policy. Consistency is quite important. Whatever line you want to go down is really up to the employer, but to have some departments allowing it and other departments not is not very clever.

Seamus: No.

Scott: Whether it's discriminatory or not, it's not very clever.

Seamus: And it can give value to a claim of discrimination, whether it's inconsistency—that's my experience and probably takeaway point on that is that where there isn't—I'm not saying that it is discriminatory or there's a discriminatory practice going on, where someone can point to someone else and say, "I'm being treated differently. Here are the reasons I think why."