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Practice calendar: January

Should practice staff be allowed to carry over unused holiday days from last year? Our legal expert advises.

The problem

January not only sees the start of a new calendar year, but for many it represents the start of a new holiday year with employees starting afresh with their annual entitlement for leave. However, many may find that they still have some holiday left over from the previous year which they want to carry over, but is this something they should be allowed to do?

Expert advice

All workers are entitled to a minimum period of annual leave, known as 'statutory holiday'. This is 5.6 weeks per year, which equates to 28 days (including the eight bank holidays) per year for a full time worker working five days a week. The regulations state that statutory holiday cannot be carried over from one leave year to the next, nor can a payment in lieu be made if the worker remains in employment. As such, statutory holiday is a case of use it, or lose it. There are some limited exceptions (albeit at odds with the legislation) which allow carry forward of statutory holiday where the worker has been prevented from taking it due to long term sickness absence, or maternity leave.

Where annual entitlement to holiday is in excess of the statutory entitlement (so for a full timer if they get more than 28 days after including bank holidays too) then in theory this excess can be carried forward - or the worker could receive a payment in lieu of untaken contractual holiday - without being a breach of the working time rules. However, whether this is permitted may be a matter for the contract of employment which may explicitly prohibit the carry forward of contractual holiday - either at all, in terms of the maximum which can be carried forward and/or if any carried forward holiday has to be taken by a certain time - or be implied by virtue of custom over time if a particular practice has been allowed.

In the absence of any contractual terms which prohibit the carry over of contractual holiday or where the contract provides for carry over with permission or at someone's discretion then practices are free to be flexible with employees over unused holiday.

We recommend that if holiday entitlement exceeds the statutory minimum that contracts are clear as to whether holiday can be carried forward. Many practices may prefer to avoid, or limit, this opportunity to encourage staff to take holiday in the year it accrues but the approach will vary between practices. Where there is no particular policy on this, care should be taken to exercise any discretion is exercised fairly amongst staff to avoid any allegations of unfairness or discrimination.

Alison Graham is a healthcare employment lawyer at Veale Wasbrough Vizards

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