Annual Leave and Notice Period

SimonTemplar

I've a quick question - can your employer force you to take annual leave within your notice period (so that they don't have to pay you the annual leave balance AND normal working salary).

So for example, an employee gives his two month notice period which would mean he would finish at the end of June. He has accured two weeks annual leave but the employer tells him to finish up in the office in the middle of May and the remaining two weeks paid from annual leave balance.

Employee doesn't want to do this and wishes to work as normal until the end of June and get his annual leave balance as a lump sum.

Is the employer within their rights to do this?

Thanks

Speedwell

If the employer gives you two months notice but wants you to leave after six weeks, it is six weeks' notice, not two months' notice.

davo10

Yes, is the answer to your question, the timing of your annual leave is at the discretion of your employer. Your employer can insist that you take your leave before your notice period has elapsed.

Mrs OBumble

I believe that an employer has to give 30 days notice of a requirement to take annual leave (don't have a link to back up that belief, though). So if it's in month-2, then yes the employer is well within their rights, and it doing what most responsible employers would do, too.

seamus

In the example you've given, it's perfectly fine. The employer gets to choose an employee's holidays and must give at least a month's notice of holidays. So if they say, "You're going on two weeks holidays in six weeks time", they're perfectly allowed to do that unless there are family reasons why that doesn't suit.

Strictly speaking it's not six weeks' notice - the employee remains "employed" by the employer for the final two weeks, they're just on holidays. The employer is not obliged to pay the final salary and supply the P45 until the two months are up.

And legally speaking the employee may not be permitted to work for someone else during that two weeks, though I've disregarded that in the past as have plenty of people I know.

In cases where the notice period is a month or less, there's nothing the employer can do really.

SimonTemplar

Thanks for the reply. The specific circumstances I am thinking of is:
- employee gave two month notice period at start of May, thus assuming the last day in the office will be end of June
- employee has just under three weeks (13 working days) of annual leave balance
- employer informs employee today (end of May) that this annual leave must be taken before the end of employment. Therefore, that annual leave must start next week and the employee's last day in office will be Tuesday next week.

It would seem the employer must give one month's notice of mandatory annual leave and that the above situation is not legal. Is my understanding correct?

livedadream

What does your contract state in relation to carrying over holidays or payment in lieu of those accrued but not taken?

seamus

Depends on what the contract of employment or the current HR policy says. There may be a specific clause about termination which states that all holidays must be taken before the end of the employment.

In which case, while the employer has only said it now, the employee should have been aware of it and therefore it would be valid.

But if it's not stated in a contract or policy anywhere and the employer has decided to just say it now, then they can't force them to take the holidays.

Could be a long slog though. Nothing to stop the employer locking the employee out of the building.

What do you do then? Sue them for 3 weeks pay?

SimonTemplar

This issue is related to a friend, not me, so I don't know what is in the contract or company policy documents.

However, I would have assumed a company's internal policy and/or contract of employment cannot supercede the law. Would it not be like a company's contract or policy saying that employees are entitled to 5 days annual leave when that contravenes the law?

livedadream

not really there is currently no legislation that covers annual leave entitlements being taken before you leave employment/terminated employment.

carrying-over of annual leave at your wish is a matter for agreement between you and your employer

davo10

livedadream wrote: »

not really there is currently no legislation that covers annual leave entitlements being taken before you leave employment/terminated employment.

carrying-over of annual leave at your wish is a matter for agreement between you and your employer

What? There is very specific legislation regarding the taking of annual leave including when you leave employment.

• Annual leave is accrued in a pro rata basis so the amount accrued depends on the hours worked up to the date you leave
• The dates on which leave is taken is decided by the employer however certain considerations such as family and rest periods must be taken into account.
• If the employee is required to take leave on certain dates, they should be informed at least one month in advance.
• An employer cannot pay an employee in lieu of untaken leave except where the employment comes to an end, in that case the employer can pay the employee for untaken holidays.
• The terms of employment can state that holidays cannot be carried over at year end, and beyond date on which employment terminates.

I'd like you to provide a link that shows a that the last line is illegal.

livedadream

davo10 wrote: »

I'd like you to provide a link that shows a that the last line is illegal.

you realise I agree with you right?
the only thing i can think of is youve misunderstood me,
and i never said anything about anything his employer is doing is illegal... i dunno what youre on about??

im talking about when you are leaving employment, ie have employment teminated or give notice, as long as you are paid for accredued holidays when you leave or take them before you leave its fine. some contracts will say you have to take leave before you go as part of your notice, but i think its pretty rare.

davo10 wrote: »

• Annual leave is accrued in a pro rata basis so the amount accrued depends on the hours worked up to the date you leave
• The dates on which leave is taken is decided by the employer however certain considerations such as family and rest periods must be taken into account.
• If the employee is required to take leave on certain dates, they should be informed at least one month in advance.
• An employer cannot pay an employee in lieu of untaken leave except where the employment comes to an end, in that case the employer can pay the employee for untaken holidays.
• The terms of employment can state that holidays cannot be carried over at year end, and beyond date on which employment terminates.

I agree with everything youve posted its basic working time act, i dunno what your problem with me is...
as long as him and his employeer agree (which OP has clearly stated he doesnt) there isnt a problem...

the only strange thing here is the notice the employer gave regarding taking leave after notice is given. thats what it will come down to if the OP cares enough to pursue it.

Irish_Elect_Eng

I think that most of the others have covered the topic well.

If the contract of employment states that holidays are to be included in the notice period or some other similar wording then it would be considered that the employer had given notice at the beginning of the employment that the holidays were to be taken during that period and the 30 day clause would not apply. And by signing the contract the employee would have agreed to this.

Unless the employee is already leaving with bad blood between them they should take this on the chin and move on. There is not point in ruining your reference.

_Brian

Mrs OBumble wrote: »

I believe that an employer has to give 30 days notice of a requirement to take annual leave (don't have a link to back up that belief, though). So if it's in month-2, then yes the employer is well within their rights, and it doing what most responsible employers would do, too.

Spot on.
To force an employee onto holidays 30days notice is required.