Untaken holiday "lost" on redundancy - legalities

[TodaysNameChange]

Hi there,

Last July, I was given advance warning that my (>4,000 employees) employer would be carrying out a restructure which may result in redundancies.

I was given "advance warning" along with the more senior staff as one change led to my line manager retiring - otherwise the plan would have been that employees on my grade would be told of the restructure in September, with an aim to beginning the process in December.

As a result I decided not to use any 2016 holiday from July - leaving 21 days of leave.

When the results of the restructure were announced in December, I was advised (as half expected) that my role was at risk of redundancy.

Now, in 2017, redundancy has been confirmed. However the employer is saying that their leave policy - only allowing 5 days leave to be carried over - means that the untaken 16 days from 2016 is lost.

A little digging suggests that while employers can enforce such a policy when employment continues, they cannot use it to "disappear" holiday in the event of termination of employment.

Also is there an onus on the employer to ensure employees take leave within the leave year under the Working Time Directive ?

I have queried this with the employer, and been told "rules is rules", which is true. But rules can't trump employment law.

For 16 days leave - c £1,000 wages - is this a battle worth fighting, or is there enough grey area to make it a question of discretion being the better part of valour ?

[Figure17a]

I think if this is last year's holiday and the rule is use it before a certain date or lose it, then the holiday hasn't disappeared becsuse of the redundancy but because you didn't use it when you should have.

Either way, there's no obligation for them to pay you "extra" for it, you'd simply take it during your notice period

[MadameCholetsDirtySecret]

If your staff handbook/contract states only carrying over 5 days then that is all they have to honour, I believe though I'm happy to be corrected. That said, I would negotiate hard on this point when finalising your package - i.e. You were focusing on the business needs during a difficult time rather than being taking days off for interviews etc.

[NotThrowAwayMyShot]

The redundancy is a red herring. You chose not to use your annual leave during 2016 so assuming a Dec - Dec holiday year it's your fault you have lost it. It would be different if you had actually been made redundant before the leave year ended in December.

[EdithWeston]

You would have lost that leave (by exceeding the carry over) whether you had been made redundant or not. So it's not a redundancy issue.

Whether the carry-over policy is in itself fair is another question.

[EdithWeston]

"Also is there an onus on the employer to ensure employees take leave within the leave year under the Working Time Directive ?"

Disclaimer: a while since I have worked in this area, so happy to be corrected by any posters with in-date experience.

An employer cannot force an employee to use their leave (unless that's a clear condition, such as having to take it during eg a factory fortnight when normal operation is suspended) but it is definitely good practice to encourage them to do so. This is one of the justifications for having a carry over policy, to encourage staff to use their annual leave in step with the leave year. If there is anything at all in a contract, staff handbook or other official workplace guidance that says something along those lines, then it might be hard for you to make a case that the employer has not done enough.

[Figure17a]

I agree Edith. Sounds like OP actively chose not to take the leave. It might be different if she'd requested leave that was repeatedly declined for operational reasons, but that's not the case

[flowery]

"Last July, I was given advance warning that my (>4,000 employees) employer would be carrying out a restructure which may result in redundancies....with an aim to beginning the process in December....As a result I decided not to use any 2016 holiday from July - leaving 21 days of leave."

I don't understand. "As a result"? Why is deciding not to take holiday (despite knowing you wouldn't be able to carry it over) the "result" of finding out a redundancy process will probably begin in December which may or may not end in you being made redundant the following year??

They wouldn't be using the carry over rule to 'disappear' holiday in the event of termination, the holiday had already disappeared before then.

An employer can require an employee to take holiday, yes, as long as adequate notice is given of that. This would normally be where they'd been unable to agree holiday requests, and therefore had to specify when the holiday can be taken.

But in circumstances where you've deliberately not taken holiday (the reasons for which aren't clear!), and haven't by the sounds of things checked whether they'd be prepared to relax their carry over policy this year for people who may or may not end up being made redundant, I'm not sure you're in much of a position to say that they should relax that policy retrospectively.

What if you hadn't been made redundant? Would you have expected them to allow you to take all that extra holiday?

[daisychain01]

I came on to ask the same question as flowery. Why did the risk of redundancy cause you to not use your entitlement during the year it had to be taken?

If it was because you were hoping to be paid the cash equivalent in your final payout, you're on shaky ground if the policy is only 5 day carryover.

We used to have a cumulative total of 15 days way-back-when but they cut it right back because it apparently had a negative effect on the company valuation when counted up across the entire workforce.

[EdithWeston]

Did you have further discussions with your employer? How are you getting on?

[OnionKnight]

Why didn't you use your holiday when you were entitled to? You shouldn't have assumed that you'd be paid for all of your remaining holiday that you chose not to take.