Paid Annual Leave – Failure to take full entitlement due to insufficient noticeWednesday, January 27th, 2010
In a decision given on 18 January 2010, the London Employment Appeal Tribunal (EAT), in the case Lyons v Mitie Security Ltd, ruled that annual holiday entitlement is not an absolute right as workers are required to give statutory or contractual notice to take leave.
Among Mr. Lyons complaints to an Employment Tribunal was that he had not been allowed to take his full annual entitlement because, according to the employer, he had not given the period of notice required by his contract in order to take the remainder of his annual entitlement in the final month of the holiday year.
One of the key issues before the EAT therefore was: Is the employer legally obliged to permit an employee to take all of his paid leave within the leave year even if requested by the employee towards the end of the leave year at a time when it may not fit in with the staffing patterns of the business?
In reaching its decision, the EAT considered
- the statutory notice requirement in the Working Time Regulations (WTR) for booking holidays
- the provisions in the WTR that allow contractual notice requirements to supersede the statutory rules
- the decision by the European Court of Justice (ECJ) in 2006 that, with reference to rest periods (a related requirement of the WTR), employers should actively ensure that workers are able to take their statutory
the decision by the ECJ in 2009 that the Working Time Directive does not prevent national legislation laying down conditions that could limit the right to paid annual leave, resulting in the loss of that right at the end of a leave year.
The EAT concluded that, because the right to paid annual leave is subject to statutory and, where relevant, contractual notice provisions, it is not an inalienable right. However, the notice provisions must not be operated by an employer in “an unreasonable, arbitrary or capricious way so as to deny any entitlement lawfully requested”.
In the particular case, Mr Lyons had not followed the contractual procedures for booking holidays but, even so, there had been no business reasons why the period of absence requested could not have been accommodated. The case was remitted to a different Tribunal for a rehearing.
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