Lyons v Mitie Security Ltd EAT/0081/09

annual leave | holiday not taken at end of year | notice requirements

The Employment Appeal Tribunal (EAT) has held that a worker who fails to comply with statutory or contractual notice requirements for taking holiday can lose annual leave at the end of the leave year if not taken. The right to take annual leave is not inalienable.

Mr Lyons was a security guard whose leave year ran from 1 April to 31 March. On 6 March 2008, he asked to be paid for nine unused days' holiday, but discovered on 1 April that this had not happened. Mr Lyons raised a grievance. The employer argued that he had not given it the four weeks' notice under his contract of employment. As his contract of employment prohibited carry over of holiday into the following leave year, he lost the holiday pay for these nine days. Mr Lyons brought an employment tribunal claim for, among other things, unpaid holiday pay. The tribunal rejected his claim.

On appeal, the EAT said that the question was whether or not statutory or contractual notice requirements for taking holiday are superseded by an inalienable right to take paid annual leave. In other words, is an employer legally obliged to permit a worker to take all of his or her paid leave within the leave year even if requested by the worker towards the end of the leave year at a time that might not fit in with the needs of the business?

The EAT commented that the lack of case law on this point shows that, for practical reasons, workers tend not to be denied holiday in such circumstances. However, workers do not have an absolute right to take holiday. The taking of holiday is subject to notice requirements and a failure to give the correct notice could result in a worker losing statutory or contractual leave. The EAT did note that the notice requirements must operate for the whole of the leave year and must not operate in an unreasonable, arbitrary or capricious way so as to deny holiday to a worker who has lawfully requested it.

However, the case was remitted to the employment tribunal for a fresh hearing, as the earlier tribunal had not considered whether or not the employer had breached Mr Lyons' contract of employment.

Case transcript of Lyons v Mitie Security Ltd (Microsoft Word format, 91K) (on the EAT website)

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