Decreased AL allowance due to unpaid leave - is this legal?

[Redcliff]

Hi
I started a new role 6 months ago and agreed, before I started, that I could take a long break over the summer due to a pre-planned trip. 9 days of this are unpaid as I haven't accumulated enough holiday which is fine.

Today someone in HR says that this unpaid leave will effect my AL allowance- basically they consider that I am working 50 weeks of the year rather than 52 so will calculate my leave accordingly. This sounds a bit nuts - it wouldn't be the case if I was taking parental leave or infact any other unpaid leave (being long for example). Does anyone know if this is common practice?

I think it sounds a bit tight and I wouldn't do it.

It is one days leave which I could really do with. I get if I was working part time I would get my AL pro-rated or if I took a long career break this would have an impact but this feels wrong.

Check your contract and the policy. If you were taking a sabbatical it'll probably say you don't accrue holidays etc, but unpaid leave wouldn't necessarily mean that they should pro rata your leave entitlement unless they've specified that.

Apart from parental leave (which has specific regulations) this is correct. Think of it as if you'd waited to start the job for that number of days.

Illegal!

As you are still employed for those two weeks. You are an employee of the company. Spark to ACAS if you need back up.

I'd be careful about jumping in saying it's illegal as there is not clear case law on this and it's a grey area. Parental leave is different in that rights to accrue holidays are clearly protected under it. I remember looking into this before and the only thing I could find was the Working Time Act 1998 which said that worker's are entitled to accrue holiday on unpaid leave with worker being defined as someone who has entered into a contract to work. I would worry that your employer would argue that you had never entered into a contract to work for that period. If they insist on taking the day off you, you could of course take a claim against them but like I said, it's a grey area and no guarantees you would get anywhere.

I'm not defending the employer in this by the way, I think it's very tight of them to take a day off you, but just be aware that it may not be a straight cut case for you if you do pursue it.

I checked both the policy and my contract and no mention of it in either of them.

It’s legal - and common practice in UK.

Slomi - that is a fair point. We have a lot of people taking long sabbaticals and career breaks at work and I think its possible that HR have applied the policy for those people to my case which is pretty unusual where I am.

It’s not 100% clear. You are still under a contract of employment so are still entitled to statutory minimum holiday. But on the other hand there’s no specific provision for accruing holiday during unpaid leave as there is for maternity leave, other family leave, or case law like for sick leave.

Does losing the day take you under the statutory minimum?

It doesn't flowery

Legal or otherwise I personally wouldn't rock the boat over 1 day in a job I'd only been in for 6 months.

Ok in that case don’t bother. They don’t have to give you the unpaid leave at all, as you know, so they can easily make it conditional on you reducing your (enhanced) annual leave entitlement, like it or lump it. If it wouldn’t take you below your statutory leave entitlement there’s nothing legally to help you argue it.

I can see the company's point of view, it does seem odd that you can take unpaid leave yet that same period of time will accrue paid holiday - it's not unpaid leave then. Whether that is the legal view I'm not sure though because I haven't come across it before tbh.

Thanks for all your advice - I still think its a bit tight of them given that if I had been there a little bit longer I could have called it parental leave but I am going to let it slide.

Where I work - public sector role, Ireland - you have an option to apply for unpaid leave via a Shorter Working Year scheme.
You can request time off of varying length & you must specify when you are going to take it. Your unpaid element is spread across the year ie you get a little less each month.

You still accrue your annual leave as usual - this is why people do it; they can augment their leave, eg in school holidays by adding on the unpaid leave.

I know it's a different country & probably sector but I think it's questionable that the employer can do this.

I think it's not only legal but also completely logical. Part time staff have their holiday pro rated so why shouldn't someone who takes unpaid leave. Otherwise no one would go part time. They would just ask to take the days they didn't want to work as unpaid leave and still have the total number of days leave they would get if they were full time. Sounds brilliant!

Check your contract and the policy. If you were taking a sabbatical it'll probably say you don't accrue holidays etc, but unpaid leave wouldn't necessarily mean that they should pro rata your leave entitlement unless they've specified that.

This

Think it is correct, and your pension will be affected also.

I still think its a bit tight of them given that if I had been there a little bit longer I could have called it parental leave but I am going to let it slide.

I'd feel the same if I were you, but look at it from the perspective of other staff. You have done two weeks' less work than them. Why should you accrue the same amount of leave? And precedent is always a worry for employers. What if the next person takes 4 weeks' unpaid leave? Do they still get a full year's AL entitlement? If not, what's the cut-off point?

If you really need the extra day, why not ask to take that as unpaid leave?