Ask the expert: Holiday during probation period

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8th Sep 2009
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Can an employer, in a small business, prevent new employees taking annual leave during their probation period? Martin Brewer and Esther Smith advise.  

 

The question:

We currently have a six-month probation period. We are a small firm and I have six new employees which makes up a third of the staff. Are they entitled by law to take holiday during the first six months, in terms of one or two days? They are only allowed to carry five days over to the next holiday year, however they will be entitled to 10 for this year.

 

Legal advice:

Martin Brewer, partner, Mills & Reeve

You need to differentiate between the amount of holiday an employee has and the time at which it may be taken. All full-time employees are entitled to a minimum of 28 days' holiday each year in accordance with the Working Time Regulations (WTR). Provided they are allowed to take that holiday in the holiday year, exactly when they take it is a matter for management discretion. Unless the employee has been sick and unable to take all of their statutory holiday, no carry over is allowed under the WTR, nor is any payment in lieu allowed for untaken statutory holiday.  

Martin Brewer can be contacted at [email protected]. For further information, please visit Mills & Reeve.

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Esther Smith, partner, Thomas Eggar
 Under the WTR, employees are entitled to accrue paid leave on a monthly basis. However, there is no reason why you have to let them take time off in advance of it being accrued. Therefore you could say to the employee that whilst they can take leave after the first month, during the first six months of employment they can only take leave that they have accrued, which would limit the amount of time they can take off and would, for example, prevent someone taking two weeks' leave in the second month when they have only accrued two months worth.

Esther Smith is a partner in Thomas Eggar's Employment Law Unit. For further information, please visit Thomas Eggar.

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By thediggersmate
08th Sep 2009 22:31

Whilst both commentators are correct, it shoud be noted that annual leave accrues from day one of the employment contract; the original Working Time Regulations in 1999 contained a provision requiring four weeks employment before entitlement but this was successfully challenged, by the entertainment industry trade union BECTU, in an action against the UK government in the European Court of Justice and the  Regulations were subsequently amended. Regulation 15, and 15A, set out the limits when leave may be taken.

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