Increasing Holiday Entitlement

DELNI consultation

December 2006

1. Introduction

Law Centre (NI) is a public interest law non-governmental organisation.  We work to promote social justice and provide specialist legal services to advice organisations and disadvantaged individuals through our advice line and our casework services from our two regional offices in Northern Ireland.  We provide a specialist legal service (advice, representation, training and policy comment) in five areas of law: community care law, immigration law, social welfare law, mental health law and employment law.  Our services are provided to almost 500 member agencies.  Members include local Citizens Advice Bureaux, independent advice agencies, local solicitors, trade unions, social services, probation offices, constituency offices of local political parties, libraries and other civic organisations.  We welcome the opportunity to comment on the proposals in this consultation document which is informed by the expertise of our employment law unit.

2. General Comments

Law Centre (NI) supports an increase in the minimum holiday entitlement in Northern Ireland by ten days, in recognition of the unique Northern Irish situation (paragraph 20).  For individuals on low incomes an increase in statutory holiday entitlement will significantly improve their conditions of employment.  We also believe that increasing the statutory entitlement to ten days is more equitable across the workforce in Northern Ireland, as there will be numerous employers who choose to close for particular holidays, such as July 12 and 13, and given this, if the entitlement was raised to eight days there would still be a differential within the workplace.

We believe that having one extra day of statutory holiday entitlement in Northern Ireland compared to the Republic of Ireland (and two more statutory holidays than the rest of the UK) will have a negligible impact on economic co-operation or competition with the Republic of Ireland (paragraph 21).  The economic arguments are further weakened by the proposal that employees may take the additional statutory holiday at any point.  We are unaware of any evidence to suggest that the granting of one extra days holiday entitlement would lead to drastic movement of labour into Northern Ireland from the Republic of Ireland, or dramatically reduce movement in the opposite direction.

3. Consultation Questions

Question 1: The benefits for staff of increased holiday.

We believe that the proposed increased holiday entitlement is particularly beneficial for low paid staff, especially those most susceptible to exploitation, such as those on minimum wage, migrant workers and those working shift patterns or part time. Often these groups are over-represented by women and as such, the proposed change should have a positive impact on women workers.  We believe that all the benefits listed in the consultation document are both valid and desirable.  It is our belief that any would, if chosen by an employee, improve their work-life balance. 

Question 2: The impact on business 

As with the introduction of statutory minimum wage regulations, we have no basis on which to conclude that there would be a significant anti-competitive effect on business from raising the statutory minimum holiday entitlement.  As all employers will be subject to the same regulation there should be no obvious form of competitive disadvantage.  Indeed we believe that the benefits to employees will be reflected back to business. Workers in the UK work the longest hours in Europe yet the Work-life Balance 2000: Baseline Study found that the majority of employers thought improved work life balance practices improved staff motivation and commitment while reducing staff turnover and absenteeism.[1]

Question 3: Equality impact assessment

Assuming that flexibility in taking statutory holidays is built into the regulations we anticipate that the changes proposed will benefit those groups covered under Section 75.  It will be important that employers accommodate individuals in taking their statutory holidays at times which have cultural and/or religious significance for them, which may result in positive employment relations within the workforce.                                      

 Question 4: Working Practices 

Assuming that there is flexibility in the ability to take holidays, and that these are calculated pro-rata, we believe there should be no extra difficulties facing those on shift patterns, annualised hours or flexible benefits.  However, to ensure fairness and equity, consideration of the method of calculating holiday entitlement based on the hours worked in a week must be addressed.  At present someone working contracted hours but who regularly works additional overtime would only receive holiday entitlement with regard to their contracted hours.[2]  Similarly, those who work variable hours have their holiday entitlement calculated on the previous thirteen weeks of employment.  In respect of the latter, it is important that employees are protected from any reduction in hours corresponding to anticipated holiday entitlement.

Question 5: Carrying Over Holidays 

We are aware that under the terms of Regulation 13(9) of the Working Time Regulations, 1998 (SI 1998/1833), it is not lawful to carry over holiday leave for those in receipt of minimum holiday entitlement only (see ECJ ruling in Federatie Nederlandse Vakbeging v Netherlands Case C-124/05).  However, under these proposals, which enhance the entitlement to holiday leave, we believe there should be an option for an employee to carry over holidays as long as the worker is guaranteed the right to take the leave within the work year if they so wish.  To prevent employees being forced into carrying over holidays we consider that carrying over of holiday leave should only be at the instigation of the employee or with their express consent.  To ensure fairness and to prevent any abuse of the system of carrying forward holiday entitlement, any leave that is carried forward and has not been taken should be remunerated by the employer if the worker parts with the organisation in the following year.

Question 6: Payment in Lieu of holidays 

Again, while this is contrary to the provisions of regulation 13(9) of the Working Time Regulations 1998 (SI 1998/1833) for those on minimum holiday entitlement (see ECJ ruling in Federatie Nederlandse Vakbeging v Netherlands Case C-124/05) we consider, in the context of enhanced rights, payment in lieu of enhanced holiday entitlement should be permitted at the request of the worker and/or by way of written agreement between the worker and the employer.

Questions 7 & 8: The Introduction of the Increase in Holiday Entitlement 

We believe that the proposed increase in holiday entitlement should be introduced in one stage from 20 to 30 days (four weeks to six weeks) from 1 October 2007 as this will be far less complicated than a phased approach.  A single introduction would reduce the administrative burden for business as well as uncertainty when considering future planning and budgeting.  It would promote clarity in relation to employment rights and would also obviate the need for a second awareness raising campaign. If, however, it is decided to adopt a phased approach, we would strongly recommend that it is a two stage plan and that the timing of the second and final stage is fixed, as soon as practicable, but no later than 1 October 2008.

Question 9: Measures to reduce the administrative burden

Nil response.

Question 10: How should carrying over or paying in lieu work

As stated above, in the first instance we believe any carrying over or buying out should be at the request of the staff member.  Where the employer initiates the request, we believe this should probably be done in writing with the employer seeking agreement, again in writing, from the worker.  In this respect it would be similar to other agreements covered under the current Working Time Regulations.

Question 11: Other Comments 

Our experience of operating an employment law advice line for employees suggests that there is a general lack of awareness of holiday entitlement amongst both workers and employers (this is particularly noticeable in relation to holiday entitlement in the first year of employment).  There is a valuable opportunity to use the proposed change to holiday entitlement to fully publicise holiday rights to both workers and employers.  As part of a public awareness campaign, it would be useful to draw attention to the grievance procedures available and options of recourse in cases of breach of rights. We would welcome a widespread publicity campaign to promote awareness of the new rights, mindful of the particular needs of new migrant workers to Northern Ireland, who may not be familiar with the regional framework of employment rights.

4. Conclusion 

Law Centre (NI) supports the move to increase statutory holiday entitlement to six weeks to cover the ten public and bank holidays currently in place in Northern Ireland.  We believe this should be done in one step from 1 October 2007.  However, should the apparent preference for a staged approach be adopted, we would support, in these circumstances, a fixed two stage approach with the second stage commencing on 1 October 2008.  In order for the proposal to have maximum impact we would suggest its launch be accompanied by a media campaign publicising employee rights with regard to holiday entitlement.