The leave entitlement under the regulations is not in
addition to bank holidays because there is no statutory
right to take them. There are eight annual bank and
public holidays in most parts of the UK and currently
employers are allowed to include these in the four weeks’
annual entitlement. The government has increased the
statutory paid holiday entitlement from 4 weeks to
5.6 weeks. This gives 28 days’ leave for those working the
standard five-day week. From 1 October 2007 there was
an increase to 4.8 weeks (24 days for the standard five-
day week) with the full entitlement of 28 days coming
into force by 1 April 2009. There would still be no right
actually to take holiday on a bank or public holiday.
Paying a rolled-up rate
It will be appreciated that calculating the various paid
leave entitlements of a workforce is a time-consuming
job for the employer and some have resorted to paying a
rolled-up rate including a proportion of holiday pay
with the weekly or monthly basic pay. The Court of
Appeal ruled in Blackburn vGridquest (t/a Select Employ-
ment)(2002) that rolled-up pay will not be effective
unless the employee concerned agrees to it and that
in the payment holiday pay is stripped out so that the
employee can see what is holiday pay and what is basic
pay. Failure to do this has resulted, as it did in the
Gridquest case, in the employer being successfully sued
for failing to pay for annual leave, with the result that
the employer paid twice!
After the expenditure of much time and money in
litigation the Court of Appeal gave definitive guidelines
on rolled-up pay in Marshalls Clay Products Ltdv Caulfield
(2003). The guidelines were:
■the rolled-up holiday pay must be incorporated clearly
into the contract of employment and expressly agreed
with the worker;
■the percentage or amount of holiday pay must be
clearly identified in the contract and preferably also
on the payslip;
■it must be a true addition to the contractual rate of
pay;
■records of holiday must be kept and reasonably practic-
able steps must be taken to require workers to take their
holidays before the expiry of the relevant holiday year.The above arrangements gave the employer consider-
able calculation advantages in a shift operation.
However, in a number of conjoined appeals from the
Court of Appeal on the subject of rolled-up holiday pay
the ECJ ruled that for the future it was unlawful. Where
before the ruling an employer has operated a system of
rolled-up pay and the payments have been made in a
transparent and comprehensible manner these payments
can be set off against any future annual leave payments
made at the time of taking leave. An employer must not,
however, proceed with further rolled-up pay payments.
(See Robinson-Steele v RD Retail Services Ltd;Clarkev
Frank Staddon Ltd; Caulfield vHanson Clay Products
Ltd(2006). By the time of the ECJ ruling Hanson had
acquired Marshalls Clay.)
BERR has also issued a statement to the effect that
rolled-up pay is unlawful and must be discontinued.Length of night work
Night work is presumed to be work between 11 pm and
6 am, unless otherwise defined by agreement.Excluded sectors
The regulations, other than those parts which apply to
young workers (see below), do not currently apply to
workers who are employed in the following sectors:■air transport;
■rail;
■road transport;
■sea transport;
■inland waterway and lake transport;
■sea fishing;
■other work at sea, e.g. offshore work in the oil and gas
industry.The original regulations do not apply to the activities
of doctors in training.Part 4Business resources
516
(ii)It should also be noted that if a worker’s employment
ends, he/she has a right to be paid for leave accrued
but not taken. This applies even where an employee is
fairly dismissed (see Witley and District Men’s Clubv
Mackay) (2001) where the dismissal was for dishonesty!
(iii)Leave does not accrue on a pro rata basis after the
first yearand all this means is that the worker is not
obliged to wait until holiday has accrued before being
allowed to take it. Nevertheless, problems such as those
seen in the Hillcase will still arise because entitlement
may have been exceeded on leaving. Contractual arrange-
ments for recovery of the excess payment by the employer
are the answer to this problem, as they are in the first
year of employment.