Holidays and unpaid
and statutory leave
Your staff have a legal right to a minimum
amount of paid annual leave. And working
parents can often take different types of time off
for the birth and care of their children.
This briefing sets out your employees’ rights and
your duties towards them. It covers:
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Holidays.
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Maternity leave.
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Other ‘family-friendly’ leave entitlements.
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Time off for dependants.
Holidays
You are obliged by law to give everyone who
works for you paid annual leave — unless they
are genuinely self-employed.
A The legal minimum in one full holiday year
is four weeks, including bank holidays and
public holidays.
B
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In many industries it is common to give
bank and public holidays in addition to
the minimum four weeks.
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You cannot replace the holiday
entitlement with pay in lieu, except when
employment comes to an end.
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Workers must be paid for holiday at the
time it is taken. You cannot include
holiday pay in a normal hourly rate.
Workers are entitled to take leave from the
start of their employment.
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You cannot impose a ‘service requirement’.
For example, you cannot make new
workers wait six months before they can
use any of their holiday entitlement.
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Leave must accrue at one-twelfth of the
annual entitlement for each month
worked, rounded to the nearest half day.
C
Part-time workers are also entitled to paid
annual leave.
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Their entitlement is calculated pro rata.
For example, if full-time, five-days-perweek workers get five weeks’ paid holiday
a year, part-timers doing the equivalent of
two days’ work a week will be entitled to
two weeks’ leave.
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Most fixed-term employees are entitled to
‘no less favourable’ treatment.
The exceptions include apprentices,
agency workers, work experience
placements of less than one year and
people on government training schemes.
D You can exercise some control over the
timing of employees’ holidays.
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E
You can require them to take some
holiday at specified times. For example, if
you close your whole factory over one or
two weeks of the year.
You can require them not to take holiday
at some specified times. For example, at or
around the time of your industry’s trade
show.
You can specify how much holiday can be
taken at any one time.
You must give appropriate notice. For
example, two weeks’ notice for each week
you require people to work.
You need a system for deciding on holiday
dates.
F
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Many businesses work on a ‘first come,
first served’ basis.
Others allow senior people, or those with
longer service, to choose their dates first.
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Specify that you need reasonable notice
on holiday dates — say, one month.
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You might also state that no more than
one or two staff in any one department
should be off at the same time.
You need a policy on holiday rollovers.
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See Working time and the minimum wage,
HR 25.
Paid or unpaid?
There are specific occasions where you are
obliged to give staff time off.
A You must give paid time off to employees
who are:
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Carrying out duties or receiving training
as a health and safety representative.
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Carrying out duties as a pension scheme
trustee.
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Carrying out duties related to your
business as a representative of a
recognised trade union or receiving
training as a trade union representative.
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Looking for a job or arranging training
for future employment while being
made redundant.
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Aged between 16 and 18 and are
training to NVQ Level 2 or equivalent. If
they pass their 18th birthday, you must
pay them until the training is complete.
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B
Maternity leave
A An employee — someone who works for
you under a contract of employment,
whether written down or not — who
becomes pregnant is entitled to a certain
amount of time off.
Carrying out duties or receiving training
as an employee representative for
consultation over collective redundancies
or business transfers.
◆
All pregnant employees qualify for
ordinary maternity leave.
There is no service requirement and it lasts
for 26 weeks.
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Up to 26 weeks of additional maternity
leave can be taken from the end of
ordinary maternity leave.
Employees must have completed 26
weeks’ continuous service with you by the
end of the 15th week before the expected
week of childbirth (EWC) to qualify.
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Pregnant employees are entitled to paid
time off work for antenatal care and
parentcraft classes.
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While they are on ordinary maternity
leave, employees are entitled to all their
normal terms and conditions (except for
pay — see box, page 3).
This includes any pay rises made, up to the
end of her maternity leave. It also includes
building holiday entitlement.
You must give time off — but payment is
discretionary — to employees who are:
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Undertaking public duties, such as
acting as a magistrate, a member of
a local authority, police authority,
health authority or NHS trust, a
member of a school governing body
or an environmental agency.
Taking part in recognised trade union
activities that are not directly related to
your business.
Women may not want their full entitlement
to maternity leave. But they must take at
least two weeks off after the birth (four
weeks, in the case of a factory worker).
B
A pregnant employee must give you
adequate notice of her intention to take
maternity leave.
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You do not have to release employees for jury
service, but you risk prosecution for contempt
of court if you choose not to.
For example, you might specify that no
more than two weeks of unused holiday
can be carried into the following year.
She must tell you when she plans to start
her ordinary maternity leave by the end of
the 15th week before the EWC (unless
this is not reasonably practicable).
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C
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She can vary the date thereafter, but only
by giving you 28 days’ notice (unless this is
not reasonably practicable).
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She cannot start her ordinary maternity
leave more than 11 weeks before the
baby is due.
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When she tells you the date on which she
intends to start her ordinary maternity
leave, you must respond within 28 days
with a letter setting out when you expect
her to return to work if she takes her full
entitlement to maternity leave.
D If an employee is ill during her pregnancy,
she is entitled to take sick leave, just as
she would if she was not pregnant.
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If she is absent from work with a
pregnancy-related illness in the four weeks
ahead of the EWC, her maternity leave
will start automatically, regardless of when
she said she wanted it to start.
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If she is too ill to return to work at the end
of her maternity leave, you must treat it as
a sickness absence.
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If the absence persists, you may eventually
need to follow your dismissal procedure.
You must only consider absence following
her return from maternity leave. To
consider any absence during the
pregnancy or sickness during maternity
leave could be discriminatory and you
could also be sued for unfair dismissal.
Neither of you need do anything more
about her return, if she intends to take
her full entitlement.
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But if she intends to return to work early,
she must give you 28 days’ notice.
Pay for parents
A Women taking ordinary maternity leave are
entitled to statutory maternity pay (SMP)
if they have worked for you for at least 26
weeks before the end of the 15th week
before the expected week of childbirth.
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This is 90 per cent of earnings for the
first six weeks. Thereafter it is £102.80 a
week or 90 per cent of earnings, if less.
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Small employers (those paying less than
£40,000 a year in National Insurance
contributions) can reclaim 104.5 per cent
of the amount they pay out in statutory
maternity pay.
Larger employers can reclaim 92 per cent
of the gross SMP paid.
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B
C
A pregnant employee has the right not to be
dismissed because of her pregnancy, maternity
leave or childbirth; the right to return to her job
(after ordinary maternity leave) or to a similar
job (after additional maternity leave); and the
right to all her normal terms and conditions of
employment (except wages — see box) while
on ordinary maternity leave.
See Maternity issues and SMP, HR 22.
Paternity leave
A Fathers and one partner in a couple who
adopt can take time off at or around the
time of the child’s birth or adoption.
Those who do not qualify for SMP (for
example, those who do not earn
enough, or the self-employed) can claim
maternity allowance (£102.80 a week).
Additional maternity leave is unpaid.
Employees taking paternity leave are
entitled to statutory paternity pay.
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This is £102.80 a week (or 90 per cent of
average pay, if lower).
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As with SMP, the employer pays and
recovers the money by offsetting the
amount against NI contributions.
B
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They can take either one full week or two
(continuous) full weeks.
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The leave must be taken within 56 days of
the birth (or the EWC if the birth is early).
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Employees taking such leave are entitled
to paternity pay (see box, left).
The employee must fulfil certain conditions.
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They must have worked for you
continuously for at least 26 weeks by the
end of the 15th week before the EWC.
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They must have, or expect to have,
responsibility for the child’s upbringing
and must be the child’s biological father,
married to the child’s mother or a partner
of the child’s mother.
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They must be taking the time off to
support the mother or care for the child.
One adoptive parent can claim statutory
adoption pay for the period of ordinary
adoption leave.
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This amounts to £102.80 a week (or 90
per cent of average pay, if lower) and
can be claimed back as with SMP and
statutory paternity pay.
As with maternity leave, additional
adoption leave is unpaid.
C
They must give you reasonable notice that
they intend to take paternity leave.
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They must tell you before the end of the
15th week before the EWC, or as soon
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thereafter as is reasonably practicable.
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there is a fallback position under which
not more than four weeks’ leave may be
taken per child per year.
They can vary the date of leave, but must
give you at least 28 days’ notice.
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You can ask that the leave be postponed
for up to six months if it would seriously
disrupt the business.
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If the employee disagrees, he or she has
the right to go to an employment tribunal.
Adoption leave
A An employee who adopts a child from a UK
adoption agency is entitled to time off to
settle the child in its new home.
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They can also take up to 26 weeks of
additional adoption leave.
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Statutory adoption pay is available for
those taking ordinary adoption leave (see
box, page 3).
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B
Where the child has been adopted by a
couple, the other partner may be entitled
to paternity leave (see 3).
There are conditions to this entitlement.
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C
They can take up to 26 weeks of ordinary
adoption leave if they have worked for
you continuously for at least 26 weeks by
the time that the prospective parent is
matched with a child.
There must be an agreement to adopt.
You are entitled to ask for evidence of it.
B
Only parents who have one year’s
continuous service with you qualify.
C
Parents must give you reasonable notice
that they intend to take parental leave.
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Time off for dependants
In an emergency, employees are also entitled to
ask for ‘reasonable’ time off to look after their
dependants. You do not have to pay for this time
unless your employment contracts say otherwise.
A This is for short-term problem solving
rather than continuing care.
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The problem must be unforeseen.
Where problems are foreseen, other
arrangements should be made.
For example, the problem might involve
sudden illness, or a breakdown of
childcare arrangements.
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The time must be ‘reasonable’ — one or
two days, rather than one or two weeks.
In determining what is reasonable, any
disruption caused to your business is
irrelevant. Each case must be decided on
its own merits.
The employee must have been newly
matched with the child by an adoption
agency. Adopting within the family, or an
existing foster child, does not count.
The employee must give reasonable notice.
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This must be at least 28 days before the
date the agency expects to place the child.
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They can change the start date of the
leave, but must give you 28 days’ notice.
Parental leave
B
Both mothers and fathers are entitled to time off
to look after their children.
A They are entitled to 13 weeks’ unpaid
parental leave per child.
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This entitlement must normally be taken
before the child’s fifth birthday.
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Parents of adopted children may take it
at any time up to five years after the
placement (or until the child’s 18th
birthday, if sooner).
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Parents of disabled children are entitled to
18 weeks per child, and may take it at any
time up to the child’s 18th birthday.
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Leave must be taken in agreement with
you, the employer.
If it is impossible to reach agreement,
Under normal circumstances, this means
at least 21 days.
C
The problem must involve dependants.
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This normally means employees’ children,
parents or other close family members.
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But it might also mean a frail neighbour
who is looked after by your employee.
If you think an employee is abusing the
system, you can demand evidence.
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You can refuse permission for time off. Or
you can institute disciplinary proceedings.
But the employee will then have the right
to complain to an employment tribunal.
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Keep records of when employees call in to
request the leave and how long they
expect it to last. If an employee calls late
or fails to estimate the length of absence,
they may not be entitled to the leave.
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