The Employment Appeal Tribunal (EAT) has held that an employer has the right to require an employee to give “sufficient notice” when requesting holidays. If sufficient notice is not given by the employee towards the end of the holiday year then the employee does not have an automatic right to take (or be paid for) this leave and may lose the right to take it.

The case in question was Lyons v. Mitie Security Ltd. Mr Lyons was a security guard with Mitie who made a request towards the end of the holiday year for the payment of nine days’ holidays. His request was refused as he had not given 4 weeks’ notice as required by his contract of employment. Mr Lyons subsequently resigned and made a claim to the Employment Tribunal (ET) for constructive dismissal and unpaid holidays. The ET dismissed this claim on the basis that Mr Lyons’ employer was entitled to refuse the request if insufficient notice was given. Mr Lyons appealed the decision.

The Decision
The EAT allowed the appeal on several points and remitted the case to a different tribunal for rehearing. However, on consideration of an employee's right to request statutory annual leave, the EAT decided that there was not an automatic right to take or be paid for holiday days if sufficient notice is not given.

So what is “sufficient notice”? The Working Time Regulations (“WTR”) state that an employee should give notice to their employer twice as many days in advance of the number of days which they wish to take. In addition, the WTR states that an employer can refuse annual leave requests as many days in advance of the number of days to which the notice relates. So if an employee has requested 10 days’ holidays, the employee must give the employer 20 days’ notice and the employer must then give the employee at least 10 days’ notice if the request is being refused.

The EAT made it clear that an employer must not operate any statutory leave mechanism in an “unreasonable, arbitrary or capricious way” so as to deny an employee from taking a holiday that they are lawfully entitled to. The EAT also stated that for the request process to be valid it must operate during the whole of the leave year.

Implications of the Decision
Where an employee does not observe the correct notice procedure, or submits a holiday request late on in the holiday year an employer can now refuse the request if it could create staffing problems for the employer or if there is insufficient time left in the holiday year for the holiday to be taken. The decision also highlights that an employee can potentially lose the right to a holiday at the end of the year if they do not comply with their employer’s holiday request procedure

Despite this restriction on an employee’s ability to take annual leave it is important to note that an employer must still manage a mechanism for holiday requests in a manner that does not simply defeat an employee’s entitlement to take holidays. Employers should also be aware that, under European law, where an employee has applied for a holiday at a late stage in the holiday year because of illness, they may still have the right to take this.

Although the EAT’s comments bring a degree of clarity to the operation of annual leave schemes, there is still a possibility that this decision could be appealed or overturned at some point in the future. We shall keep you updated on any future developments.

Further information
For further information on the issues raised in this ezine, please contact Alun Thomas, Alan Glazer or your usual contact within the Employment Team.

This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.