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Holiday during Probation Period

Holiday during Probation Period

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Currently we have a 6 month probation period. We are a small firm and I have 6 new employees which makes up a third of the
employees. Are they entitled by law to take holiday during the first 6 months in terms of one or two days. They are only allowed
to carry 5 days over to the next holiday year however they will be entitled to ten for this year. Please let me know your thoughts

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By Clare Anderson
04th Aug 2009 13:29

Hi Jan, if the individual has already booked the leave prior to accepting the new role I don't think you've got any choice but to honour it so it's worth checking during the recruitment process if they have any holidays planned. Otherwise to work six months in a new job without a break is pretty tough although I would agree you'll get a better idea of their performance if they don't take too much holiday. If they wish to take perhaps a long weekend during their probation personally I would grant it especially as they may have been using their holiday during their previous role for job hunting and therefore not really had a proper break. Any thoughts from anyone else?

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By Joanne Jeffery
04th Aug 2009 17:23

As with the previous answer we would always honor the holidays employees have pre booked prior to commencing employment with us. However, the holidays requested may ot always be paid they may have to take some of the leave as unpaid.

All employees with under 12 months service are only entitled to take and be paid for (other than what is mentioned above) holidays that they have accrued. Our Annual Leave / Holiday allowance is calculated in hours or approx 1.83 days per complete month worked.

e.g. if at the end of the 4th month a new employee wishes to take holidays they would only be permitted to take 5 days.

I hope this helps.

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By jenkev
06th Aug 2009 12:31

We treat holiday requests from those on probation in the same way as other employees. It is subject to approval, so each manager makes a decision that is right for their business requirements. In some instances it might be better for them to take holiday in advance of accruing it due to peaks and troughs. We also ensure that we write into the employment contract the right to deduct money owed to the company so in the event that someone leaves we can offset holiday taken and deduct from their final pay.

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By ljrowley
06th Aug 2009 13:56

The other consideration for you is in respect of not being able to carry over statutory holiday entitlement from one holiday year to the next eg new starters commence work on 1st August and the holiday year is Jan-Dec. If you do not permit these individuals to take any leave until after 6 months' service, this will take you into the following holiday year and as such is a breach of working time regulations.

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By garethpugh
06th Aug 2009 14:02

Can you refuse people in their probationary period to take holiday accrued? Yes.

As an employer you can turn down any holiday request, even if it was booked before the person joined you. Whether you would want to or not is another matter. If in doing so you pass the end of your holiday year and you were to deem the holiday lost as it wasn't taken I would suggest the employee would claim against you under the Working Time Regs, or as an unlawful deduction and perhaps even breach of contract.

If you want to continue the practice then at your discretion allow them to carry the 10 days over on this occasion but set a date for it to be taken by. Certainly it is common for a person in their first year to only be able to take what they have accrued.

In a 6 month period I would have thought the person has plenty of opportunity to demonstrate their performance for their probationary period. If there were any concerns would you not extend it for a further period?

I would suggest this is a matter of employment law, common sense and what is best for the business. No use annoying the employee and them leaving, therefore needing to be replaced, but equally not leaving the business under resourced.

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By policymaker
10th Aug 2009 14:37

Jan,

All employees have a statutory entitlement to holidays under the Working Time Regulations - this is currently 28 days (5.6 weeks) for staff who work a 5 day week. The 28 days can include Bank Holidays leaving 20 days (4 weeks) holiday as a minimum legal entitlement over and above Bank Holidays provided that your staff do not have to work on Bank Holidays. Staff who join after the start of a leave year receive a pro rata entitlement. This entitlement must be taken within the leave year and cannot be carried over as it is derived from the Working Time Directive and was introduced for Health and Safety reasons. Recent European Court of Justice and House of Lords rulings (on a case about long term sickness absence) have established that your staff can apply to a Tribunal under the Working Time Regulations or the Employment Rights Act (as an unlawful deduction from wages) if you do not allow them to take their holiday within the leave year - although you can refuse specific dates if you give the required notice - basically the same period as the holiday i.e. a weeks notice for a weeks holiday.

In addition to the WTR entitlement your staff may also have contractual rights to additional holiday and any holiday in excess of 28 days does not have the same protection as the minimum legal entitlement - i.e. you can allow it to be carried forward to the next leave year etc. However, if you refuse to allow staff their contractual right to holiday you could face claims for unlawful deduction from wages or possibly constructive dismissal.

Unless your probation period has a very structured training programme which makes taking time off difficult I suggest you allow probationers to book leave as normal after an agreed period or build set holidays into the programme from the outset to avoid disruption.

I wasn't sure what you mean by "Are they entitled by law to take holiday during the first 6 months in terms of one or two days" - the leagl right is to take the time off by agreement with set notice periods for both holiday requests and refusal of requests. These can be one day or up to the full entitlement.

I hope that this helps.

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