Employment e-Brief – Working Time Holiday (Lyons v Mitie Security Ltd (EAT))

Wednesday 27th January 2010

Employers might be interested in this case concerning holiday and the Working Time Regulations 1998.  The Employment Appeal Tribunal (EAT) has considered whether an employer has the right to insist that an employee gives notice as required in his contract of employment before being eligible to take holiday, even where the employee’s leave year is to due to come to an end, and he will lose that holiday.

Mr Lyons was a security guard whose holiday year with his employer ended on 31 March.  At the beginning of March 2008 realised that he still had 6 unused days of holiday before the holiday year ended, and he made a request for that holiday on 6 March 2008.

The Company refused that holiday request on the basis that Mr Lyons had not given 4 weeks notice required by his contract for annual leave, and as his new holiday year would begin on 1 April 2008, and the Company did not allow carry over of holidays, he would lose that holiday.

Mr Lyons resigned and lodged a claim for unpaid holiday pay, amongst other claims.  He claimed that his right to 4 weeks paid annual leave under the Working Time Regulations took precedence over any contractual obligation he may have in relation to notice, and his employer should have granted his holiday.

The EAT disagreed.  They concluded that Mr Lyons was bound by the requirement for notice of holiday contained within his contract of employment.  Provided an employer applies the notice provision reasonably, and not in an “unreasonable, arbitrary or capricious way” then there may be occasions, such as this, whereby an employee is unable to use up all of his annual leave before the end of a leave year.

In practice, it is likely that many of you will not refuse a request for annual leave, even if it has not been made with the required notice, provided it is reasonable and you are in a position to grant it.  However, it is worth noting that you are within your rights to insist upon the correct notice, even if that means employees losing holiday entitlement at the end of a leave year.  It is also a rarity to see an employer- friendly decision in relation to Working Time Regulations, particularly given recent case law which has been extremely generous to employees!

If you have any questions or queries please contact a member of the employment department.