Working Time Regs and The Right To Take Leave
Working Time Regulations and the Right to take Leave.
The EAT has recently handed down a judgment in Lyons v Mitie Security Limited.
The issue revolves around leave entitlement notice towards the end of the leave year.
The Claimant made an application to take nine days holiday on 6 March 2008. The Claimant’s leave year ran from 1 April to 31 March.
The Claimant’s contract of employment stipulated that the holiday application form should be submitted four weeks before the intended holiday. The Claimant’s request for holiday was refused because it was not made in time. The Claimant submitted a claim to the employment tribunal under the Working Time Regulations. The claim failed and the Claimant appealed to the EAT.
The EAT held that the right to statutory leave is not absolute in that it has been made subject to notice provisions. Statutory leave is subject to the conditions set out in regulation 15 of the Working Time Regulations subject to any contractual variation.
Regulation 15 states that a worker is entitled to take annual leave by giving notice to his employer. The employer can accept or refuse the application. If the leave application is refused the employer must give the employee notice.
The EAT held that this mechanism must operate consistently during the leave year and not be operated in an unreasonable manner by the employer so as to deny any entitlement lawfully requested.
The EAT then concluded that such a mechanism even if operated correctly may result in the employee losing the right to annual leave at the end of the leave year in respect of annual leave not taken.
The crux of this judgment is that employers should ensure that there is a mechanism in place for employees to request annual leave.
The employee must ensure that he applies for leave with the correct notice, especially towards the end of the leave year, or the leave entitlement may be lost.
We will of course keep you updated on all of these areas of law as the year progresses but should you require any specific advice in the meantime please do not hesitate to contact any of the Employment Team.
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