Contractual arrangements on Holiday Dates overrides the Statutory Rules

19th September 2008

The Employment Appeal Tribunal ("EAT") has recently decided a case involving holidays that is helpful for employers. In Industry & Commercial Maintenance v Briffa it was held that a prior agreement on holidays dates will override the statutory rules.

In this case, Mr Briffa was given one week's written notice of termination of employment. That notice required Mr. Briffa to use up his outstanding holiday entitlement in his final week of work, a total of 4 days.

At the original hearing, an Employment Tribunal held that the employer had breached Regulation 15 of the Working Time Regulations 1998 (WTR) which provides if an employer wants to give notice of holiday dates to an employee it must give such notice "double the amount of time to be taken". It therefore held as Mr. Briffa had not been given the required 8 days notice, he could not be legally required to take the holiday. The Tribunal awarded Mr. Briffa 4 days pay in lieu of the 4 days holiday as compensation.

The EAT found, however, that in making the original decision, the Tribunal had totally overlooked another provision of the WTR, Regulation 15 (5), which provides that the specific rights and obligations may be varied or excluded by a "relevant agreement", (which can be a workforce agreement, collective agreement or "any other agreement in writing which is legally enforceable between the worker and his employer"). In Mr. Briffa's case, the relevant agreement was a contractual term, and under Regulation 2 it overrode Regulation 15.

The case is a useful reminder for employers that if their contracts are properly drafted they can insist employees take accrued holiday during their notice period and the employer will not have to pay in lieu.