Increasing holiday entitlement

Legal Services Commission Consultation

May 2007 

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 Citizen Advice Bureau, 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. Consultation Questions

Question 1: Draft Regulations

Draft Regulations are included in the consultation document. Do you have any comments on the detailed drafting of the proposed changes to the law? If so, please specify.

We believe the drafting is unnecessarily complicated.  We feel that this complexity will have most negative impact for those, such as unskilled workers, migrant workers and agency workers who both need the cover afforded by the regulations most and often have lower levels of familiarity with legal documents.

There are two specific areas where we feel that the regulations are drafted in such a way as to penalise those who will benefit most from the extra holiday provision. 

We are concerned that the requirement to limit holiday entitlement to 30 days will unfairly discriminate against those who work more than five days a week.  We note that the regulations are clear that anyone who works less than 5 full days a week must take a pro-rata figure for holiday entitlement.  If an individual working 0.4 of a week receives 0.4 of the holiday entitlement it is only equitable that an individual working 1.2 of working week receives 1.2 of their holiday entitlement.  As it is often those in the lowest paid sectors of employment who have to work extra hours to generate sufficient income we feel that restricting their access to entitlement will impact on this relatively vulnerable group.  We would argue that DEL should look to amend this regulation to protect the rights of those who work long hours and more than five days a week.

Similarly we feel that the regulation setting out that those within their first year of employment will no longer be eligible to round up their holiday entitlement will actually have the effect of penalising those who work on short term contracts.  This group, often the low paid or migrant workers, are those who benefit most from protection of rights as set out as the intention for the document.  We would argue that to do this in the most comprehensive manner this regulation should be re-drafted to amend this anomaly.

Finally we would have liked further clarification as to why the department decided not to make a direct amendment to regulation 13 of the ’98 Regulations and instead referred to the enhanced entitlement as ‘Additional Leave’.

Question 2: Inadvertent impacts

Are there any other consequences of these Regulations, which the Department might not have anticipated? Please specify.

As we state in our general comments the method for introducing the new leave regulations appears to be overly complex.  Many of the employees benefiting from this move are from the more vulnerable sectors of society and many of the employees having to adopt these practices are small businesses.  Both of these groups would benefit from the most straightforward approach, hence our continuing belief that the move to six weeks holiday entitlement should have been in one stage.

Question 3: Supporting implementation

Have you any specific suggestions for additional steps that the Department might take (e.g. make available draft standard letters for workers) which might make it easier for employers to implement these regulations?

Law Center (NI) would argue that to assist employees to understand their entitlement and employers (particularly small businesses) their obligations it would be helpful if guidance could be produced setting out specific examples of how the new regulations will apply to individuals.  This is particularly important, as we have noted above, given the complicated nature of the calculations to be used. This advice would be best served in form of a letter or guidance pack, though our preference would be for a redrafting of the legislation to simplify the measures for the benefit of both those implementing the regulations and those benefiting from them.

Question 4: Guidance requirements

Are there any particular issues you would find it helpful to see covered in the guidance accompanying these Regulations?

As stated in response to question 3 we would want ay guidance to focus on providing advice on the complex calculations that individuals and employers must make.

Question 5: Other comments

Do you have any other comments on the proposals to increase the holiday entitlement?

Law Centre (NI) welcomes the increase in the minimum holiday entitlement in Northern Ireland by 10 days, in recognition of the unique Northern Irish situation.  For individuals on low incomes an increase in statutory holiday entitlement will significantly improve their conditions of employment. 

We still believe that the decision to split the move over two years will only mean that businesses have to change their holiday practice twice and that for this reason it would have been preferable to move to the new holiday entitlement in one stage.  Indeed examining the proposals in the regulations it becomes apparent that this decision actually makes the calculation of holiday entitlement more complicated than it needed to be to the detriment of both employers and employees.