Working Time (Amendment) Regulations 2007: frequently asked questions

Leanne Cole and Carys Wilson of Osborne Clarke continues a series of articles on the Working Time (Amendment) Regulations 2007 by answering some frequently asked questions.

When will workers receive the additional statutory holiday entitlement?

Workers will be entitled to 4.8 weeks' statutory holiday a year (24 days if they work a five-day week) from 1 October 2007 and 5.6 weeks (28 days if they work a five-day week) from 1 April 2009. The entitlement to additional statutory annual leave begins on the first day of the employee's employment and there is no qualifying period for employees to receive the additional holiday entitlement.

Does the additional statutory holiday entitlement include time off for bank and public holidays?

The additional holiday entitlement may include time off for bank and public holidays. However, employers will not be required to allow workers to take their holiday on bank and public holidays and they may require workers to use the additional days at other times.

If a worker works six days a week, how will his or her holiday entitlement be calculated?

The statutory holiday entitlement will be capped at 28 days. If a worker works six days a week, on a strict pro rata calculation, he or she would be entitled to 28.8 days (4.8 weeks) from 1 October 2007 and 33.6 days (5.6 weeks) from 1 April 2009. However, after 1 October 2007, he or she will still be entitled to only 28 days' annual leave due to the cap. Employers will be able to give workers more contractual holiday if they wish.

Will employers have to round up employees' holiday entitlement to the nearest half or whole day?

In certain circumstances, workers will be entitled to part days' holiday. For example, a worker who works four days a week will be entitled to 19.2 days' holiday from 1 October 2007 and 22.4 days from 1 April 2009. Employers do not have to round up holiday entitlement to the nearest half or whole day, but they can choose to do so if they wish. However, employers should bear in mind that the holiday entitlement cannot be rounded down to the nearest full day. For example, if a worker is entitled to 19.2 days' holiday, the employer could choose to increase it to 19.5 or 20 days' holiday, but could not round it down to 19. Also, if the employer did not want to round up the holiday, it could allow the worker to take a full day's leave and pay him or her for just the part day that he or she is owed. Alternatively, the employer could allow the part day to be taken off a day's shift and allow the worker to leave early or come in late.

Will a worker be entitled to take his or her additional holiday entitlement at any time during the year?

Employers will be able to agree the timing of holidays as they do at the moment, and will still be able to require holiday to be taken at specific times such as on a bank holiday or to refuse employee requests to take leave at other times such as during busy periods. An employer may refuse a worker permission to take leave either by following the statutory procedures for agreeing timing of holidays under the Working Time Regulations 1998 or through appropriate contractual terms and conditions.

Will employers be entitled to replace the additional statutory holiday entitlement with a payment in lieu?

From 1 October 2007 to 1 April 2009, provided that both the worker and the employer agree, the employer will be permitted to replace the additional holiday entitlement with a payment in lieu. However, four weeks' leave must still be taken as holiday in each leave year. From 1 April 2009 payment in lieu of the additional leave entitlement will be permitted only on termination of employment.

Can a worker carry over any untaken leave to another leave year?

Four weeks' holiday must be taken in each leave year. However, provided that both the worker and the employer agree, any unused additional holiday entitlement may be carried over into the next leave year. An employer may require any leave that is carried over to be taken within a specified period within the next leave year.

How should an employer calculate annual leave during the transition period?

During the transition period (1 October 2007 to 1 April 2009) the additional leave entitlement will be calculated proportionally depending on when the employer's leave year starts. The first increase comes into force on 1 October 2007, so if the employer's leave starts on 1 October, its full-time workers will be entitled to 24 days' annual leave from October 2007. However, if the employer's holiday year starts at another time of the year, such as on 1 January or the beginning of the employer's financial year, its workers will receive a pro rata entitlement.

The Government has published a Holiday Entitlement Ready Reckoner (on the DBERR website) and Business Link has published a Calculate your employee's holiday entitlement tool (on the Business Link website) to help employers and workers calculate the new holiday entitlement.

Next week's article will be a case study on implementing the Regulations for part-time workers and shift workers.

Leanne Cole is a solicitor in the employment department at Osborne Clarke (leanne.cole@osborneclarke.com) and Carys Wilson is a trainee (carys.wilson@osborneclarke.com).

Further information on Osborne Clarke can be accessed at www.osborneclarke.com.