Our advice regarding working hours, rest breaks and holiday entitlements has been updated for 2020 with additional information. Let’s break it down for you! If you’re a Care Worker, please see our article about your entitlements under the Working Time Regulations.
Our Crunch advisors are only able to answer accountancy related questions. If you have an employment question please either leave a comment below or phone the Acas Helpline on 0300 123 110.
The Working Time Regulations entitle all (*see exceptions below) Workers and Employees to:
- A minimum Daily Rest period of 11 hours uninterrupted rest between finishing your job and starting the next day (Workers aged between 15-18 are entitled to a minimum daily rest break of 12 hours).
- A Weekly Rest period of 24 hours uninterrupted rest within each seven day period (Young Workers aged 15-18 are entitled to 48 hours); or, at the Employers choice, a Fortnightly Rest Period of 48 consecutive hours within each 14 day period.
- The weekly rest period should not include any part of the daily rest period.
- A break of 20 minutes if your daily working day is more than six hours long (or 30 minutes if you’re aged 15-18 years and you work more than 4.5 hours at a stretch).
- If you’re an Agency Temp, the Employer you’re working for (not the Agency who employs you) is responsible for you receiving these minimum rest breaks.
- The first two types of rest periods are generally unpaid. The 20 minute break may be paid or unpaid, depending on what it says in your contract of employment. For more information on rest breaks please see the Direct Gov website.
Certain ‘special case’ workers are exempt from these rest break provisions and can be legitimately asked to work through their rest-breaks if:
- You’re a shift worker who may not be able to take your daily or weekly rest periods between your shifts. Shift workers are defined as those engaged in activities involving periods of work that are split up over the day, and those who work according to a certain shift pattern where workers ‘succeed’ each other at the same workstation. The shift pattern may be continuous or not, but will involve the need for workers to work at different times over a given period of days of weeks
- There’s a genuine need for continuity of production/service around the clock, eg. hospitals, residential institutions, care workers, press/TV/film/radio, public utilities, industries where machinery must be kept working 24 hours a day, research and development activities, agriculture
- The work is affected by unusual or unforeseeable circumstances beyond anyone’s control, or exceptional events, or where work is affected by an accident or risk of an accident
- The work involves security or surveillance which requires a permanent presence
- The work has a foreseeable surge in activity, i.e. in agriculture, tourism and postal services
- There is a Collective or Workforce Agreement in place that excludes these rest-break obligations – but the workers must have been fully consulted with to ensure these are valid.
In these cases, if you can’t receive your rest breaks, you must be offered equivalent periods of ‘compensatory rest’ wherever possible. This compensatory rest should be given immediately after the end of the work period where possible.
If this isn’t possible for objective reasons, the Employer should give you “such protection as may be appropriate in order to safeguard the workers health and safety” (e.g. an assessment of the worker’s continued fitness to work, reducing his/her workload or additional supervision).
The government Department for Business, Innovation and Skills (previously BERR) has guidance that says a worker, even if they fall into one of these categories, must have a right to a minimum of 90 hours rest per week. Compensatory rest doesn’t necessarily need to come out of time that would otherwise have been working time.
Case law on Rest Breaks
A court case in 2012, Hughes v Corps of Commissionaires Management Ltd confirmed that interrupted rest breaks can still count as compensatory rest – details are here – and that when considering whether or not a worker is a ‘special case’ worker, it’s the workers activities that have to be considered, not those of the employer.
In December 2016, in Grange v Abellio, the EAT ruled that a worker can bring a claim for a denial or their right to a rest break, despite them not explicitly requesting the break and being refused it, if the working arrangements prevent the worker from exercising their entitlement to a rest break. This isn’t the same as a worker who chooses not to take a break, though. Mr. Grange, until July 2012, had worked an 8.5 hour day with a half hour unpaid lunch break. In July 2012, he received an email stating he should work eight hours without a break and leave half an hour earlier. Mr. Grange lodged a grievance in July 2014 that he’d been made to work without a rest break. The original Employment Tribunal said there had to be a refusal of an express request to exercise the right to a break in order to bring a claim. The EAT upheld Mr. Grange’s appeal.
This case also confirmed that employers need to make sure they give staff the opportunity to take a rest break if they wish to; employers cannot take a ‘passive role’ in giving rest breaks to workers, they must be proactive about giving the rest breaks (even if the worker chooses not to take the break). Importantly, the worker must know at the start of a rest break that he/she is on a rest break!
In 2014, in an unreported case (so we only know the name of the claimant, not the care Care Home he worked for – although we have since been told it was Accept Care Limited Consett, County Durham [this isn’t yet verified]), an Employment Tribunal found that a care service provider was in breach of the WTR for not incorporating daily rest breaks and daily rest periods into a support worker’s shift pattern and for failing to offer compensatory rest. The Care Home employed approximately 150 staff with 25 managers.
The claimant, Mr. Hood, claimed that there had been a number of occasions when he hadn’t be permitted to take a rest break, and that he hadn’t been granted a full daily rest period an average of three-four times per month in a year. The Care Home’s staff handbook stated that rest breaks away from the service user were not to be taken during a shift. They argued that it wasn’t economical to provide support to cover the occasions when Mr. Hood was not granted his daily rest period. The Tribunal agreed that the service the Care Home provided fell into the category of services that was exempt, but that Mr. Hood hadn’t been offered compensatory rest periods.
The Tribunal found it difficult to understand why the home could not organise shifts so as to allow daily rest periods for its employees, as the home allowed employees who smoke to take a break during their shift which was covered by a Manager. The Tribunal felt a manager could also cover for rest breaks and that these rest breaks could be easily incorporated into the worker’s shift.
In Russell v Transocean International Resources Ltd 2011, Mr. Russell and others were employed on offshore oil and gas installations and all of the employees (except one) were contracted to work for two weeks offshore, followed by two weeks offshore (known as field breaks). Whilst working offshore, they generally worked a 12 hour shift each day followed by 12 hours off duty (still offshore), but didn’t get any days off. The Employment Appeal Tribunal had to consider whether the period spent onshore should count towards the workers’ entitlement to paid annual leave.
The EAT also held that the time available during field breaks, after allowing the two days compensatory rest (to account for the fact they worked offshore without a weekly rest period) was more than sufficient to cover their entitlement to annual leave. The Court said that every worker must be entitled to a rest break, a daily rest break and a weekly rest period; each period must be measured separately from each other and cannot overlap with one another. However, there’s no rule that entitlement to holiday must come out of working time. The WTR don’t require that holiday entitlement must be taken consecutively or that the weeks cannot be interrupted.
In December 2017, the ECJ found in Maio Marques da Rosa v Varzimsol that there’s no requirement that workers rest on the 7th day. Mr da Rosa was employed by Varzimsol, a Portuguese casino owner. The casino was open 364 days a year and workers sometimes worked seven consecutive days a week (followed by two consecutive days off). When da Rosa was made redundant, he brought a claim that he had been denied his weekly rest periods. The case was referred to the ECJ to decide if EU law should be interpreted as meaning the weekly rest period must be granted at the latest on the 7th day after six consecutive working days, or if employers can choose. The ECJ decreed that the legislation doesn’t state when in each seven-day period the minimum rest period must be taken. In the UK, Employers can choose a seven-day or 14 day period, meaning a UK employer could give a 48 hour rest period at the beginning of one consecutive 14 day working period and another at the end of a second period. This is theoretical and I doubt would represent good practice – at least on the Health and Safety front!
In January 2018, the EAT in Crawford v Network Rail Infrastructure Limited found that Network Rail were in breach of its obligations under the Working Time Regulations by not providing Mr Crawford with sufficient rest. Railway workers have different rules under the WTR and can be excluded from the entitlement to a ‘standard’ rest break, but should be given an equivalent period of compensatory rest where possible. Crawford was a signaller and 6 trains usually passed through his signal-box every hour, so he was unable to take an uninterrupted break for 20 minutes during his shift (total eight hours). Network Rail told him he could take shorter breaks instead, although he would remain on call (which added together were more than 20 minutes). However, in some regions, Network Rail provided a relief signaller to allow the signallers their uninterrupted rest break; this wasn’t provided in Crawford’s region. Crawford alleged a breach of the WTR as his break wasn’t a standard rest break or an equivalent period of compensatory rest. The original employment tribunal found in Network Rails favour, so Crawford appealed to the EAT and was successful. The EAT rejected Network Rail’s point that a 20 minute period of compensatory rest could be made by adding up other shorter periods of rest. The EAT said the compensatory rest time must, as far as is possible, amount to a single break of at least 20 minutes. Network Rail had a way to provide him with sufficient rest, by providing a relief signaller as they did in other regions.
Network Rail appealed this decision, and in March 2019 the Court of Appeal agreed with Network Rail. The Court said that in such ‘special’ cases (railway workers) there was no reason in principle why a break had to be for an uninterrupted period of 20 minutes, and in appropriate circumstances it might be better to have shorter, more frequent breaks (which in aggregate amount to 20 minutes or more).
There are different Working Time Regulations (WTR) rules for workers in air, sea and road transport industries (see our Guide to Road Transport workers driving hours), offshore workers, police and emergency services (see the next section for more details) and domestic servants employed in a private house are generally excluded from all WTR regulations (except daily and weekly rest breaks).
In addition, there’s also the principle of Unmeasured Working Time. This applies to a Worker whose working time isn’t measured or pre-determined (and where the Worker has control over the number of hours they work), who’s then excluded from all rest break provisions and the 48 hour maximum weekly working hours (see next section). This generally applies to Company Directors (and specifically those with autonomous decision-making powers), Managers, Family Workers and Religious Workers.
Breaches of rest-break provisions are made through a claim to Employment Tribunal (within three months of the breach), although compensation is usually very limited, or via claims to the Health and Safety Executive.
Workers are protected from being subject to any detriment by their Employer if they refuse (or propose to refuse) to comply with a requirement that their Employer imposes which is in contravention of the WTR, or where they refuse to forgo a right given to them by the WTR. Compensation for injury to feelings can be awarded by an Employment Tribunal in these situations.
Working Hours Time Limits
The legislation states that you cannot work for more than 48 hours per week, which is normally measured over a 17 week ‘reference period’. However, this ’17 week reference period’ can be amended where:
- There’s a valid collective or workforce agreement in place the reference period can be extended up to a maximum of 52 weeks
- Workers can have a 26 week reference period if they live far from their workplace (e.g. offshore workers); if they work in security or surveillance that requires a permanent presence; or they perform a duty that involves the need for continuity of service or production e.g. Press/Film/TV, hospital and care workers, farm workers, utility workers, dock and airport workers.
Information you need to know about the weekly working limit:
- If you are on a contract for a fixed period (Fixed Term PAYE or as a Worker) that falls under the 17 or 26 week reference period (whichever your employer is using), your ‘reference’ period for calculating your working hours will be the actual length of your contract (see below).
- This 48 hour per week limit also applies if you’ve more than one job, i.e. the total amount of combined working hours you do shouldn’t exceed 48 per week. If it does, each Employer should ask you to sign an Opt-Out (see below).
- If you’re an Agency Temp, the Employer you work for (not the Agency that employs you) is responsible for ensuring you do not work more than 48 hours per week. See our guide to the Agency Workers Regulations which came into effect on 1st October 2011 and give ‘agency workers’ the right to equal treatment with permanent employees.
- Young Workers (those under 18 but over school leaving age) cannot normally work more than eight hours per day (40 hours per week) and can’t Opt-Out of these limits or have their hours averaged out (see below).
- The ‘reference’ period takes into account any statutory holidays, sick leave, maternity/paternity/adoption/parental leave and if any Opt-Out’s (see below) were in place. The reference period is extended by the number of days on any of the above.
- There are different rules for workers in air, sea and road transport – see our new Guide here for road transport workers and the section below about Night Workers. Domestic servants employed in a private house are generally excluded from weekly hours limits. Those who have unmeasured working time (see previous section) are exempt from the weekly working hours limits.
- In many industries, such as Film and TV, Workers can be asked by their Employers to voluntarily sign an Opt-Out of this 48 hour limit (which is legally valid) – i.e. you agree that you can work for more than 48 hours per week. The Opt-Out is not a condition of your employment and it must remain optional and voluntary. Therefore, even if you have signed your contract with an Opt Out in place, you have the legal right to opt back in to the 48 hour limit at a later date – you have to give your employer a minimum of seven days written notice by law to do this (check your contract in case it requires a longer time scale to Opt back in, as this is allowed).
- Young workers cannot Opt Out.
- You shouldn’t be subjected to any detriment by refusing or proposing to refuse to sign an Opt-Out agreement. If you are an employee and are dismissed because you refuse to sign an Opt-Out clause, this could be seen as automatically unfair dismissal and you could potentially make a claim to an Employment Tribunal.
- In April 2009 the UK won its right to retain the Opt Out – the European Parliament had proposed to remove the Opt Out provision within three years – for now, the Opt Out remains legal and valid.
- The number of hours you work per week can be averaged by your employer over the applicable 17/26 week reference period (or your contract length), rather than measured in one week, and the first 20 days holiday you’re legally entitled to (see below) cannot be used to reduce your average number of hours worked. However, with the daily and weekly rest breaks and the opt-out above included, the maximum in any week you should work is 78 hours. See the information below about what a working week really means.
Breaches of the 48 hour limit are dealt with by the Health and Safety Executive (i.e. a prosecution and/or a fine for your Employer, but not compensation for the worker).
In an interesting case in September 2020, an Employment Tribunal ruled that an engineer had been unfairly dismissed after he resigned over a dispute about his pay while travelling for work.
In Mr T Holloway v Aura Gas Ltd, Mr Holloway was unfairly constructively dismissed after the company refused to pay him overtime for travelling between jobs. His contracted hours were 45 per week and he had not signed an opt-out, but was regularly working over 48 hours when his travel was taken into account.
Calculating the Working Week
The Working Week is calculated with your ‘normal’ weekly working hours and any:
- Job-related training*
- Job-related travelling time (including where this is an integral part of your work). In September 2015 the ECJ decided that travel time counts as working time. If a worker doesn’t have a fixed place of work but is required to travel from home at the beginning of the day to the premises of one of their customers, and to return home from the premises of another existing customer, following a list or route that the employer has determined for the worker. You can read the details here – please note this DOESN’T apply to pay only working time.
- Business/working lunches
- Time spent by a health and safety representative or Trade Union representative attending health and safety meetings and other union meetings at their workplace (in 2015 Edwards and another v Encirc Ltd)
- Time spent working abroad (for a UK company)
- Paid and some unpaid overtime (see below)
- Time spent on-call at the workplace (including time ‘sleeping’ when you’re either working or asleep while on-call at the work-place, where ‘sleeping’ is allowed). See our article for more information about sleeping-time and Night Working under the Working Time Regulations.
- Time spent on-call elsewhere while you are actually working.
* The UK WTR 1998 excludes training which is provided at a course by an educational institution or person whose main business is the provision of training. However, in November 2021, the European Court of Justice (ECJ) found that external training a worker was required to do by his employer, outside of his normal working hours, can be categorised as “working time” under the EU Working Time Directive (so should be paid and/or rest breaks should be taken into account). This decision is not binding on the UK because of Brexit, however UK tribunals can still refer to an ECJ decision if it is relevant to a dispute before them. Employers should therefore consider the impact of very considerable external training time they ask of their employees, and whether this should be paid and whether rest breaks apply.
The Working Week does not include:
- Breaks when no work is done (e.g. lunch breaks)
- Normal travel to and from work
- Time spent travelling outside of normal working hours (e.g. an early meeting at a client’s premises which requires travel time the night before)
- Time on-call spent away from the workplace (unless you’re actually working). In 2018, the ECJ considered, in Ville de Nivelles v Matzak, whether time when Matzak was on standby was working time. Matzak was a volunteer retained firefighter in Belgium. When he was on standby duty (one week in every four, at evenings and weekends) he had to be contactable and within eight minutes travel time of his fire station. He was paid an annual allowance for these standby shifts, but he then bought a claim saying he hadn’t been paid properly for this time. The ECJ felt that when a worker had to be physically present at a place determined by their employer (even their own home), and available to work at such short notice, it would be impossible for the worker to choose where they want to be or do at that time. This time would therefore be within the workers normal working duties. Matzaks’ standby time was, in turn, deemed working time under the WTD. The greater the restrictions on a worker when they’re on call, but not working, the more likely it is that the period will be regarded as working time. If a longer response time had been required, this may not have been the conclusion drawn by the ECJ. This decision may later have implications for the National Minimum Wage – but not yet
- In April 2021 the ECJ set out the factors to be taken into account when deciding if standby time should be counted as working time. Although UK Courts may now only ‘have regard’ to case law from the ECJ, it is unclear yet whether these should be taken into account in the UK. The ECJ said that a period of standby time must be regarded as working time in its entirety when the constraints imposed on the worker “objectively and very significantly” impact that worker’s ability to freely manage their time when their professional services are not directly required. If there are no constraints then only the time when actual work is performed must be classified as working time. Only the ‘constraints’ that are imposed upon the worker by law/collective agreement/by the employer are relevant - not any difficulties the standby time may cause the worker that are because of his/her own free choice. In deciding whether the constraints warrant classifying that time as working time you need to consider the required response time - if a worker is allowed a reasonable time to resume their professional activities that period will not amount to working time. However, if a worker must return to work within a few minutes, that should be included in working time. The number of times the workers are called upon during standby is also important - the more times they are called upon the less scope they have to manage their time freely.
- Unpaid overtime where you have volunteered to, for example, stay late to finish something off
- Paid or unpaid holiday.
There’s extra protection under WTR for people classified as night workers.
- Night time is generally defined as the period between 11pm and 6am.
- You are a night worker if you regularly work at least three hours during the night time.
- As a night worker, you should not work more than an average of 8 hours in each 24 hour period, excluding overtime (which is calculated over the appropriate reference period which is usually 17 weeks for Night Workers).
- If your job involves special hazards or heavy physical or mental strain, you can’t work more than eight hours in each 24 hour period (i.e. no overtime can be worked) and your working hours can’t be averaged over any reference period.
- It may be possible for a Worker and an Employer to enter into a Workforce Agreement that could modify or exclude the limits on night work.
- There are different night working rules for young people – they should not normally work between 10pm – 6am, but this can be varied to 11pm-7am.
Those who have unmeasured working time (see above) are exempt from the maximum length of night work under these provisions, as they’re Domestic Servants in private households. If you’re a Night Worker, your Employer must offer you a free health assessment before you start working nights and at regular intervals after that.
What records does your employer need to keep?
Until May 2019, the position regarding which records your employer should keep were:
- Records showing that the weekly working limit has been complied with; it’s up to your Employer to determine what records need to be kept for this purpose (i.e. using existing records maintained for other reasons such as pay, can be acceptable). Employers only need to keep “adequate” records. Although they don’t need to keep a running total of how much time each worker works on an average week.
- Employers need to make occasional checks on workers who do standard hours and are unlikely to reach the 48-hour limit.
- If workers are close to the working time limit of 48 hours per week, their hours should be monitored.
- Employers need to keep records of the names of workers who’ve agreed to ‘Opt Out’ and can work 48 hours or more a week.
- Where there are Night Workers, Employers must keep a record of the name of each night worker, what date they had their health assessment and the result of that assessment.
- Records don’t need to be kept for rest breaks, days off and annual leave (although obviously most employers will keep annual leave records).
- Records must be kept for two years.
- These rules are enforced by the Health & Safety Executive. Employers that breach them can be prosecuted or fined under criminal law.
However, in May 2019, the Court of Justice of the European Union (CJEU) delivered an important judgement in the case of CCOO v Deutsche Bank SAE. CCOO are a Spanish trade union who wanted a system for recording how long its members actually worked each day (including overtime) so it could check the actual hours complied with their members’ written working conditions.
Under Spanish law, employers then only had to keep a record of overtime hours worked each day by each worker, rather than all the hours they actually worked (it has changed since, see below). The Court was given evidence that nearly 54% of all overtime was not recorded.
The CJEU said that all workers had a fundamental right to limit their working hours and to take adequate rest, and the only way to ensure that these rights were met was to accurately record all the number of hours worked and when it was done (including overtime).
Therefore, all member states must require employers to set up “an objective, reliable and accessible system enabling the duration of time worked each day by each worker”. This ruling appears to apply to all workers, even those whose time is unmeasured or those who have opted out of the maximum working week.
This decision is binding in the UK and affects all employers. However, the decision goes further than the UK’s Working Time Regulations require at the moment, but UK employment tribunals must interpret the legislation in accordance with CJEU decisions. Therefore, employers should have systems in place to measure all the hours their staff work, not just those hours that are set out in their contract of employment. The CJEU also said that employers cannot avoid having these systems in place because they are too expensive to implement!
However, the UK government had intervened in this case to argue against the CJEU outcome and the UK will need to amend the Working Time Regulations to comply with this decision (and could face infringement proceedings from the European Commission if they fail to do this). Because of the UK government’s opposition to this decision and because of Brexit it looks unlikely the UK government will amend the WTR any time soon!
There would also need to be updated guidance from the Health & Safety Executive (as they are the body that enforces WTR record-keeping obligations)! So as things stand at the moment, employers may wish to wait and see what happens next (i.e. make no changes to their current methods of recording hours of work, if they don’t currently comply with the CJEU decision). We’ll update this further if there are any changes!
(Since 12th May 2019, all companies in Spain are now required to have all their workers check in and out daily so they can keep a record of the exact hours they put in, and the employer can be fined up to €6,250 if they fail to do so. This is to stop the long-running culture of unpaid extra hours.)
Paid holidays under the Working Time Regulations legislation
The Working Time Regulations also entitle all Workers and Employees to a legal minimum of 28 days paid leave each year (5.6 weeks – pro rata’d if you’re part-time). Things you need to know:
- Your employer has no legal obligation to ensure you have taken your statutory holiday entitlement, if they have encouraged you to use all your entitlement each year
- You start building up your holiday entitlement as soon as you start work.
- You need to tell your employer when you want your leave but they can control when you take it (i.e. agree or disagree to the dates you want).
- Your Employer should specify in writing the notice periods they require you to give before you take leave. If this isn’t specified, you must give at least twice the length of the intended leave period you wish to take – e.g. you give two days’ notice to take one day’s leave. Your employer should reply (agree or disagree by giving counter notice) within the same length of time as your intended leave – e.g. you want one day’s leave, give them two days’ notice and they should reply within one day
- Your employer may restrict you taking leave through the following methods – by your employment contract, via custom or practise or negotiations with a Trade Union or Employee Representative. They can restrict your leave because: they shut down at certain times; and they can specify when you may or may not take your leave; they may cap the amount of leave that you can take at any one time. If such arrangements don’t already exist, then your employer can ask you to take leave at specific times by giving you notice to require you to take your leave, of twice the length of the leave period they require you to take. For example, they would need to give you two weeks notice to require you to take one weeks leave
- If your employer denies you your rights to statutory holiday entitlement, you can make a complaint to an Employment Tribunal. If the Tribunal upholds your complaint, they may order your Employer to pay you compensation
- Holiday entitlement cannot be counted as weekly rest days since they’re completely separate. However, see Russell v Transocean International Resources Ltd 2011 (under Rest Breaks, above)
- If you’re an Agency Temp, the Agency that employs you (not the Employer you’re working for) is responsible for ensuring you receive your statutory minimum holiday entitlement. See our Guide to the Agency Workers Regulations, which came into effect on 1st October 2011 and give ‘agency workers’ the right to equal treatment with permanent employees.
- Self-employed contractors whose ‘employment status’ is wrongly classified by their Employer, as they should actually be ‘workers’, are eligible for holidays. In the long-running case of King v Sash Windows (where King was treated as self-employed but this was found not to be genuine), in December 2017 the ECJ (Court of Justice of the European Union) said that workers who had not taken paid holiday (because they had been wrongly treated as self-employed) could obtain compensation for the untaken holiday, even if this goes back several years. The ECJ sent the case back to the UK Court of Appeal, to decide if the Working Time Regulations could be interpreted to give effect to this decision, and if it could, to decide how much compensation to award Mr King. Sadly the case will not be heard as it has now been settled outside the Courts (reported in November 2018), so there will not be any guidance given on how to calculate the holiday pay owed – for example is this paid at the ‘normal’ rate of pay (which Sash Windows’ lawyers disagreed with) or is there a calculation for ‘compensation’ to reflect the loss of benefits. Additionally, in the UK the Working Time Regulations only provide workers with a compensation remedy if they have actually taken leave but not been paid at the correct amount for it (or not paid at all for it). In this case Mr King had not taken any leave at all. The WTR is currently incompatible with the original EU Working Time Directive which says that workers should be able to bring claims even if they have not taken any holiday leave
- However, in the equally long-running case of Smith v Pimlico Plumbers (see details here), Mr Smith has been declared a worker, and not self-employed. However, an employment tribunal in March 2019, ruled that he could not claim holiday pay for the six years he worked at Pimlico Plumbers (from 2011) as he had not made the claim quickly enough (unlike the Sash Windows case above, Smith had actually taken holidays but he had not been paid for the holiday). In March 2021 the Employment Appeal Tribunal agreed that his claim was out of time, and that he could have brought his holiday pay claim within the set time limit. This case was appealed to the Court of Appeal, who ruled (in February 2022) that the original ET and the EAT were incorrect and that Smith was entitled to carry over four weeks of leave per year, even if the leave had been taken but not been paid. Smith is now entitled to 4 weeks annual leave (required by the original EU Working Time Directive) for every year he was working for Pimlico between 2005 and 2011! It is, however, very likely that Pimlico will appeal this decision to the Supreme Court because of the large sums involved!
- You should get paid for any untaken holiday if you leave your employer, but you have no legal entitlement to be paid if you cannot or choose not to take them all. However, at the end of December 2014, the Employment Appeal Tribunal may have extended this to other situations where a worker ‘was unable or unwilling (to take the leave) because of reasons beyond his control’ – see below
- For each week of holiday that you’re owed, you’re entitled to a week’s pay – see below for further information
- If an employee takes an agreed career break, law in the UK allows the Employer and Employee to negotiate whether holidays will accrue during the absence or not (holiday entitlement generally continues to accrue during short periods of unpaid leave)
- Bank and Public holidays can be included in these 28 days; at the moment, there is no statutory right to take bank holidays off. Therefore if you take a day off as paid leave on a bank holiday, it may count as one of your annual leave days under WTD legislation – depending on what your employment contract states (for more information on Bank Holidays, see below).
- Your employer may give you more leave than 28 days as part of your contract.
- There’s no legal obligation that the first 20 days holiday entitlement, if unused, should be carried forward into the next leave year, if your employer has encouraged you take the leave, unless you’ve been off sick or on maternity leave (see below). The additional eight days holiday entitlement can be carried over into the next holiday leave year, if unused, with your employers agreement. Your employer may choose to allow more than eight days to be carried over, thoug
- However, in November 2018, the ECJ ruled that employers cannot refuse their workers permission to carry over unused statutory holiday into the next leave period, if the Employer has not actually given the worker the opportunity to take the leave. The ECJ said that national laws cannot allow the automatic loss of accrued annual leave entitlement because the worker failed to take it. For Employers, this means that you must actively encourage workers to take their leave and tell them, in good time, that they will lose it if they don’t take it. So, if a worker loses their entitlement this will only be lawful if the worker deliberately declines to take their leave. If employers don’t take steps to ensure workers take their leave then it can be carried forward. The decision only applies to the first 20 days leave in each year and was about two German cases, Kreuziger v Land Berline and Max-Planck-Gesellschaft v Shimizu. It is not currently clear though how long this leave could be carried over for
- The government increased the minimum statutory holiday entitlement from 20 to 24 days per year from 1st October 2007, and to 28 days per year from 1st April 2009 for those working five days a week.
Holiday during the coronavirus pandemic
The government announced, on 27th March 2020, that workers who have not taken all of their statutory annual leave entitlement in 2020, due to the coronavirus pandemic, will now be able to carry it over into the next two leave years.
Employers can obviously refuse your leave requests in the future if you would be required to self-isolate and this is inconvenient to the business; they can also revoke their authorisation of your planned leave, in advance of you going abroad – as long as they give you the same number of days notice, as the holiday you wanted to take would have lasted. But employers should tread carefully when doing this, taking into account the reason why the holiday was booked.
In June 2021 an Employment Tribunal found that a contractor, working through an Agency, did not accrue holiday pay while being furloughed (in D Perkins v Best Connection Group Limited). The Court found that for the period when the claimant was on furlough he was not a worker, as he was not working on an assignment for the agency, and therefore he did not accrue annual leave during this time. The Agency had engaged the claimant under a contract for services and the contract only existed when the claimant was working on an assignment with a client, and not when he was between assignments. This decision could obviously be appealed and there will probably be more similar claims, which will all be fact dependent, so this judgement should not be relied on solely.
Rolled Up Holiday Pay
Freelancers in the TV and film industry are often classed as workers for the purposes of WTR and are eligible for this holiday. However, often the holiday cannot be taken during the contract period if the contract is too short, and so it may be included in your weekly/daily rate, called rolled-up holiday pay.
This practise was ruled unlawful by the European Court of Justice in March 2006; the Department of Trade and Industries guidance has been amended to reflect this judgement, saying payment for the statutory annual leave should be made at the time when the leave is taken. Your contract should therefore show your daily/weekly rate, plus a rate for holiday pay separately.
Calculating your holiday entitlement
The simplest way to calculate your holiday entitlement is to multiply the number of days you work each week by 5.6. If you work part-time, irregular (casual or zero hours) or freelance hours you can calculate your entitlement on this Direct Gov page.
Alternatively, the Department for Business, Energy & Industrial Strategy produced a guide in 2019, called ‘Holiday Pay – Guidance on calculating holiday pay for workers without fixed hours or pay’ which you can see here.
Where a worker does not have regular or normal working hours, holiday pay is calculated based on average weekly pay in the 12 weeks before the holiday date (or if the worker did not work in the previous 12 weeks, then the last 12 weeks they worked/earned).
On 6th April 2020 the reference period in the WTR for calculating annual leave increases from 12 to 52 weeks. If the worker has been employed for less than 52 weeks, their holiday pay is based on the number of complete weeks they have worked. This change will only affect workers whose pay varies. You can read more information about this here.
As this can be complicated and time-consuming, the calculation of 12.07% is often used to calculate holiday entitlement and holiday pay (based on 52 weeks less 5.6 weeks = 46.4 weeks. 5.6 weeks x 46.4 weeks is 12.07%).
However, although the 12.07% method is recommended by Acas, there’s criticism of this method and in early 2018 the EAT, in Brazel v Harpur Trust (where Ms Brazel was a visiting music teacher at Bedford Girls’ School working on a term time only contract, but with no set regular hours and no set term length) held that using the 12.07% method to calculate holiday pay was incorrect for workers who are employed on permanent term-time and/or zero hours contracts with variable hours, and their pay should be calculated by their average earnings over the previous 12 weeks.
This case went to the Court of Appeal in August 2019 and the CoA agreed with the EAT (accepting the fact that this could mean some part-year workers are entitled to a higher proportion of their annual earnings as holiday pay; because Ms Brazel was employed on a permanent contract and was therefore entitled to 5.6 weeks holiday a year).
This decision does not affect workers on part-time regular hours contracts. This also does not affect casual workers, only employees, so the Acas guidance of 12.07% is aimed at casual workers only, not permanent employees (we wait for Acas to update their guidance!).
This decision does mean that all people employed under permanent contracts who work irregular hours will be entitled to 5.6 weeks holiday pay each year, regardless of the number of weeks they actually work throughout the year. Employers should, therefore, assess the employment status of their workers who work irregular hours, if they are employed on a permanent contract, this will affect them.
The Harpur Trust may, of course, appeal this decision to the Supreme Court.
Calculating leave for shift workers
It’s often easier to work this out by the number of shifts you get off, averaged over a 17 week period – e.g. if you work 4 x 12 hour shifts and then have 4 days off, the average working week is 3.5 x 12 hour shifts (this is calculated by the number of shifts worked  the divided by the total number of days in the shift pattern (8) x 7 days – so 4 divided 8 x 7 = 3.5). So, 5.6 weeks holiday is 5.6 x 3.5 = 19.6 x 12 hour shifts holiday entitlement = 235.2 hours. There is a shift holiday calculator here which you might find useful.
Calculating holiday entitlement for term-time workers
You need to calculate how many hours a week you work on average each year, then multiply this by your holiday entitlement, e.g.
- If you work 40 hours per week for 40 weeks of the year – 40 x 40 = 1600 working hours a year. 1600 divided by 46.4 weeks (52 weeks less 5.6 weeks) = 34.48 hours.
- Multiply 34.48 hours x 5.6 weeks = 193.09 hours holiday over a year.
- To convert this to days, divide this number by the number of hours you work each day.
‘Rounding’ up holiday entitlement
If your holiday entitlement includes a part-day, your Employer may choose to round this up to a whole day (they cannot round it down).
Please note that the statutory paid holiday entitlement is capped at 28 days. So, if you work six days a week, you’re not entitled to more than 28 days holiday under statutory entitlement (your Employer may give you more) – e.g. 5.6 x 5 days per week = 28 days but 5.6 x 6 days per week = 33.6 days is not a legal entitlement.
Holiday entitlement during sick leave and sick leave during holidays
A Week’s Pay – how much pay should you receive for a week’s holiday?
Check out our article, “How to calculate holiday pay when staff receive overtime and commission payments“, for more information.
There are two different types of ‘Bank’ Holidays – bank holidays and public holidays.
There are currently six permanent bank holidays in England and Wales, plus Christmas Day and Good Friday, which are public holidays. In Scotland there are seven permanent bank holidays, plus Christmas Day and Good Friday. There are also other public or local holidays which can be determined by local authorities, based on local tradition. In Northern Ireland, there are eight permanent bank holidays, plus Christmas Day and Good Friday.
Additional bank holidays can be declared, by law, to celebrate special occasions, for example there was a special bank holiday on 29th April 2011 to celebrate the royal wedding of Prince William and on 5th June 2012 to celebrate the Queen’s Diamond Jubilee. However, an extra given bank holidays do not necessarily increase your entitlement from 28 to 29 days holiday entitlement under the WTR, it depends how your contract of employment is worded:
- If your contract entitles you to, say, 20 days annual leave plus all statutory, bank and public holidays, you would potentially get an extra days paid holiday. But, if public holidays are listed by name, in your contract, or your contract says 20 days plus the usual eight public/bank holidays then you may not receive this extra bank holiday
- Also if your contract says 28 days inclusive of public/bank holidays then you are unlikely to receive any extra bank holiday.
More information on Bank Holidays:
- There’s no statutory right for Employees to have paid leave on bank holidays (but your employment contract may allow this).
- There’s no statutory right to extra pay if you work on a bank holiday. Any right to extra pay depends on the terms of your employment contract.
- Part-time employees should receive a pro-rata’d allowance of paid bank holidays to ensure they’re dealt with fairly – even if they don’t normally work on the days the bank holidays fall.
- Where a bank holiday is aligned to a Christian festival, (i.e. Easter) there’s no requirement to allow additional time off on other dates for employees who practice other religions.
- The statutory holiday entitlement of 28 days MAY include bank holidays (or your Employer may give you some or all of the bank holiday days in addition to the 28 days).
- If you’re on Statutory Parental Leave, Statutory Paternity Leave, Statutory Maternity Leave, Shared Parental Leave or Statutory Adoption Leave during a bank holiday, you’re entitled to a compensatory day off (or pay in lieu). If you receive the minimum holiday entitlement of 28 days per year which includes bank holidays, then any bank holiday that falls during your ‘family’ leave would entitle you to receive a day off in lieu for this bank holiday. However, if you receive paid time off for bank holidays on top of the statutory minimum 28 days, your right to a compensatory day off or pay in lieu will depend on the terms of your employment contract (or any holiday policy).
Our Crunch advisors are only able to answer accountancy related questions. If you have an employment question please either leave a comment below or phone the Acas Helpline on 0300 123 110
If you are an Employer and need ongoing professional help with any staff/freelance issues, talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses. Our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.