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Casual workers are entitled to holiday even when they are not working.

You may have seen reported in the news recently that many casual workers are being urged to try to recover untaken holiday from their employer or agency.

The reason for this is that in recent years cases in the Courts and Tribunals have highlighted the fact that anyone who is engaged as a worker or employee, with an ongoing contract or engagement, will continue to accrue holiday regardless of whether they have been undertaking any work under that contract.

All workers and employees are entitled to 5.6 weeks paid holiday per year, and therefore someone who remains employed throughout the year but who may only have worked for 6 months of the year is entitled to the full 5.6 weeks leave.

This means that employees have the right to book and take holiday and to be paid when they take that leave. The amount of pay when you take the leave is calculated based on the average of the last 52 weeks worked, or it will go back further if there are weeks when no work and no payment has been made.  

Whilst workers and employees have the right to take holiday, they do not have the right to be paid in lieu of holiday unless their employment has terminated.

In most businesses if you do not take holiday in the holiday leave year then you cannot carry it over to the next year, so it is lost. However, if you have refused the holiday requests, misled the worker or employee into thinking they cannot take holiday or have not told them it will be lost at the end of the year then holiday accrued can carry over.

Should employers be worried about back pay claims for holiday?

Employees and workers who are still engaged under a contract with you can of course request to take holiday and be paid for that time.

I recommend that you encourage employees to take their holiday during the holiday year to avoid any future claims.

Fortunately, the law was changed a few years ago so that there is a limit to the amount someone can recover for holiday pay and this is two years.

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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.


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