Can an employee be required to take his or her outstanding annual leave while on garden leave?
Under reg.15 of the Working Time Regulations 1998 (SI 1998/1833) an employer may nominate dates on which an employee must take some or all of his or her statutory annual holiday entitlement, provided that advance notice is given. The notice required is a minimum of twice as many days as the number of days' holiday that the employer wishes the employee to take. For example, the employer would have to give at least two weeks' notice in advance of the start date of a period of one week's holiday leave. These provisions may, however, be varied or excluded by a relevant agreement set up between the employer and appropriate workers' representatives. Where no such agreement exists, these provisions will apply.
Whether or not it is possible for an employee to use up all his or her outstanding annual holiday entitlement during garden leave will depend on the length of the garden leave that the employer has instructed the employee to take in relation to the length of outstanding holiday entitlement. If the former is not long enough to allow for the notice period for the holiday plus the period of holiday leave, it will not be possible for the employer to ask the employee to use up all his or her holiday in this way. The employee would then be entitled to be paid for any holiday leave for the current holiday year that had not been taken before the date of termination of his or her employment.
The above relates to the 5.6 weeks' statutory minimum annual holiday that employers must grant all workers under the Working Time Regulations 1998. If an employer grants employees more than the 5.6 weeks' holiday entitlement, the position with regard to any additional holiday will depend on the terms of the employee's contract or any contractual policy on the timing of holiday that the employer has in force.