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Can I Carry Over Holiday Pay?

Posted on Thursday 29th June 2017 by Neil Andrews

Holiday


Under the law you’re entitled to a minimum 28 days’ paid holiday per year if you’re a full-time employee or worker (part-timers are entitled to the proportional holiday depending on hours worked).

These 28 days usually include public holidays such as Christmas Day, Boxing Day, New Year’s Day, Good Friday and Easter Monday.

But what if you were unable to take all those days of holiday? What if you worked instead? Are you entitled to back pay? The law says ‘yes’ – but there’s a bit more to it than that.

As you might have guessed from the first paragraph, the law makes a distinction between ‘employees’ and ‘workers’…


How The Law Treats Employees And Workers Differently

Employment law separates people who work into three categories:

  • Employees – these are people employed on a full or part-time contract. They have significant rights under employment law.
  • Workers – they could be trades people or they may earn their living as freelancers in the ‘gig economy’, working for companies such as Uber or Deliveroo. They may be on zero hours contracts. They have fewer legal rights than employees.
  • Self-employed – they employ themselves, often as trades people or consultants. They have no employment rights.


How Your Employment Status Affects Your Holiday Pay

Let’s get back to that original question – can you claim back pay if you didn’t take all the statutory holiday you were entitled to?

Employees can claim back pay but there is a time limit – you have to claim it within two years, otherwise you lose it. Until a few years ago there was no time limit.

Workers (as opposed to employees) may be able to avoid this time limit following a non-binding legal opinion by the European Advocate General.

“What about Brexit?” I hear you ask. We’ll get to that…

The European Advocate General has just stated that a worker may carry over their holiday pay – with no time limit. It would cover the full period in which the person worked at the place in question.

The European Court of Justice has yet to approve this but it generally follows the advice of the Advocate General – particularly where holiday rights are concerned. The ECJ views them as an important health and safety issue.

With regard to Brexit, the UK is still formally a member of the EU. Negotiations are under way but until we have actually left the EU we are still bound by its laws.


Find Out More

Need more information? Contact employment law solicitor Neil Andrews, a Partner at Coles Miller and head of the firm’s Commercial Department, 01202 355695.

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