Annual leave and holiday pay under the Working Time Regulations 1998, including entitlement, carry-over and payment on termination. Harpur Trust v Brazel; King v The Sash Window Workshop Ltd; Smith v Pimlico Plumbers Ltd (No 2).
Provisions: reg 13, reg 13A, reg 14, reg 15, reg 16, reg 30.
Working Time; 48-hour limit; employees cannot be forced to work more than 48 hours unless they opt out.
ECR I-7963 - Working time; on-call; time spent on-call at the workplace is working time.
Working Time; on-call; time spent on-call at the workplace is working time, even if sleeping.
ECR I-2531 - Holiday pay; rolled-up holiday pay is unlawful (but credit can be given for payments made).
Holiday pay; rolled-up holiday pay; set-off. Following Robinson-Steele (rolled-up holiday pay unlawful under Art 7 WTD, but sums paid transparently and comprehensibly as holiday pay may be set off against leave actually taken), the EAT allowed set-off under reg 16(5) WTR 1998 where the worker was told of the arrangement at the outset, there was an established method of calculation, and the amounts were itemised on payslips. The three practical limbs an employer must evidence to rescue a pre-2024 rolled-up arrangement. Note: rolled-up holiday pay only became lawful (for irregular-hours and part-year workers) for leave years from 1 April 2024, via reg 16A inserted by SI 2023/1426.
Holiday pay; sickness; employees accrue statutory holiday while on sick leave.
Holiday pay; sickness; a worker who falls sick during annual leave is entitled to reschedule the leave.
Holiday pay; sickness; right to paid leave is not extinguished by long-term sickness.
Holiday pay; sickness; a worker on sick leave carries over holiday entitlement automatically without needing to request it.
Holiday pay; sickness; entitlement to paid annual leave exists even if the worker is on sick leave for the whole year.
Holiday pay; pilots; holiday pay must include flying pay supplements.
Holiday pay; results-based commission; normal remuneration; Working Time Directive art 7(1).
Working Time; on-call; time spent on-call away from the workplace can be working time if constraints are high.
Holiday pay; sickness; sick workers can carry over holiday for up to 18 months.
Working Time; rest breaks; employers must proactively ensure workers can take reg 12 rest breaks — no prior request/refusal needed (Miles v Linkage no longer followed).
Holiday Pay; voluntary overtime; regular voluntary overtime must be included in the calculation of holiday pay.
Holiday pay; annual leave; indefinite carry-over. The CJEU held that a worker who was wrongly treated as self-employed, and so was never given paid annual leave, does not lose the right at the end of each leave year. An employer cannot rely on a time bar to deny paid annual leave where it has failed to put the worker in a position to exercise the right. Where the reason leave was not taken is the inhibiting effect of the employer refusing to pay for it, there is no limit on the period for which the right carries forward, and a payment in lieu falls due on termination however long afterwards. Applied domestically in Smith v Pimlico Plumbers Ltd (No 2) and cited by the Supreme Court in Harpur Trust v Brazel.
Working Time Regulations; remedy; injury to feelings. The Court of Appeal held that compensation for a breach of the Working Time Regulations 1998 does not extend to an award for injury to feelings. The claimant had been awarded compensation for rest breaks she was unable to take, and sought an additional injury to feelings award. Neither the Working Time Directive nor the Regulations confers any such right. Decisive against injury to feelings heads pleaded in holiday pay and rest break claims, and to be distinguished from the discrimination jurisdiction, where Vento applies.
Holiday pay; part-year workers; 12.07% accrual method is unlawful; workers get 5.6 weeks regardless of weeks worked.
NMW; salaried hours; NMW is payable for 'basic hours' designated in contract; disputes over unpaid extra hours.
Holiday pay; carry-over; worker prevented from taking paid annual leave. The Court of Appeal confirmed that the effect of King v The Sash Window Workshop is that a worker may carry over the right to payment for annual leave from one leave year to the next where he has been prevented from taking annual leave at all, or has been permitted to take only unpaid leave. It is not enough for an employer to give the worker the opportunity to take paid leave: the employer must also encourage him to take it and inform him that the right will be lost at the end of the leave year. Where the employer does not do so, the right does not lapse but carries over and accumulates until termination, when the worker is entitled to payment for the untaken leave. A contractual no-carry-forward clause therefore does not bite unless those steps were taken. Now substantially codified for leave years from 1 January 2024 in WTR 1998 reg 13(16)-(18).
Holiday Pay; termination; 'relevant agreements' cannot be used to pay less than the statutory WTR entitlement upon termination.
NMW; travel time; travel to a place of work is generally not 'time worked' for National Minimum Wage purposes.