Annual leave and holiday pay

Taking annual leave

Annual leave should be taken with the agreement of your employer. There is no legal right to choose when to take your annual leave; your employer will need to balance your right to take leave against the needs of the service and to maintain appropriate staffing levels. 

You should check any local policies in place as normally there is a clear process you must follow when booking annual leave. Generally, you are required to give notice to the employer of when you wish to take leave. In absence of any specific local policy, the notice period should be at least twice the period of the leave to be taken so if you wish to take two weeks off, you should give four weeks’ notice. 

Your employer can refuse your request for annual leave, but they must notify you of this within a period equivalent to the period of leave. Your employer should also act reasonably when dealing with annual leave requests; for example, they should operate a fair process for dealing with multiple requests for the same day off.

Your employer can also require you to take all or any of the leave to which you are entitled at specified times, provided you are given prior notice. Check your contract for further information.

The RCN expects employers to protect the health, safety and well-being of all health and care staff. This includes ensuring that nursing and other health care staff can take paid annual leave, as well as being able to take rest periods and breaks during shifts. 

If you have followed your contract and policy on annual leave, and you have obtained the employer’s consent, it may not be reasonable for the employer to unilaterally cancel your leave. This would only be allowed if the contract or local agreement permitted such a cancellation. If your employer did this without any such provision in the contract or in the absence of any emergency situation, e.g. a pandemic, then you could have a claim for breach of contract (including recovery of holiday expenses already incurred).

During this time of unsustainable pressure, the RCN is calling on all health and care employers to put in place appropriate arrangements which ensure that: 

• Wherever possible, booked annual leave should be honoured. Guidance issued by the DHSC in England confirms that employers should only consider cancelling an individual’s pre-agreed annual leave in exceptional circumstances. 
• The equality impact of any decision is considered. 
• Any restrictions on staff taking annual leave are staggered so all staff get to take leave. This has been specifically recommended by the NHS in Scotland.
• Any restrictions are prioritised in line with the needs of maintaining essential services, following consultation and agreement with local staff sides and trade union representatives. 
• DHSC guidance for England also reminds employers that they should give the appropriate statutory notice to cancel annual leave and consider whether compensation is appropriate for any out of pocket expenses that a staff member may incur as a result of cancelling their holiday plans. 

If you work in the NHS, please also see the NHS Staff Council statement on annual leave during COVID-19.

If your line manager is trying to cancel your annual leave, in the first instance please check your contract and/or local policy. Please raise the issue with your HR Department or a more senior manager and ask the reason for this in writing. If you need further support, contact us.

If you don't take all of your statutory holiday entitlement during your leave year, your employer may allow you to carry over the left over days to the next holiday year. You must take at least four weeks’ holiday a year, so only holiday on top of this can be carried over. Arrangements for carry-over of contractual annual leave (over and above the statutory minimum entitlement) will be dictated by your contract and/or local policy.

Every worker whether part-time or full-time is entitled to statutory paid annual leave. Since April 2009, workers have been entitled to 5.6 weeks annual leave.

To calculate statutory annual leave entitlement, multiply the number of days you work a week by 5.6. For example, if you work a five day week you would be entitled to 28 days annual leave a year:

5 days x 5.6 weeks = 28 days per annum.

The above is the minimum right to paid holiday, but your employer may offer more than this in your contract or terms and conditions. This is known as your contractual (as opposed to statutory) annual leave.

Contractual annual leave entitlement may not be less generous than the statutory provision. Contact us if you are being denied either your statutory or contractual leave rights.

A worker is entitled to 5.6 weeks of paid statutory annual leave under the Working Time Regulations 1998.  For those workers who work

• term-time
• irregular hours or different hours in different weeks, or
• zero hours in some weeks,

a week’s pay should be calculated as an average of the preceding 52 weeks’ pay, ignoring any week where earnings were zero. This 52-week reference period starts with the week before the worker will be on annual leave and counts back until it includes 52 weeks in which the worker was paid.  

For example, if you work term-time only and  are not provided with work during school holidays, then any week in which you were not paid does not count in the 52-week reference period.

There is no automatic statutory entitlement to bank and public holidays. If you are given a paid day off for a bank holiday your employer can count this as part of the 5.6 weeks statutory annual leave entitlement. You should therefore check your contract of employment for your annual leave entitlement.

If you are employed within the NHS please also see annex 25 of the NHS Terms and Conditions for information about public holidays over the Christmas and New Year periods. 

It is best practice for part-time staff to receive the same amount of public holiday annual leave as full time staff, pro rata.

For example, a member of staff works three days a week on Tuesday, Wednesday and Thursday for six hours per day. This totals 18 hours per week. In this workplace, full time workers work 37.5 hours a week over five days. The average working day over a five day week is 7.5 hours. Full time staff receive 60 hours bank holiday leave in total (7.5 hours x 8 public holiday days).

The part time member of staff works 18 hours a week. 60 hours, divided by 37.5, multiplied by 18 is 28.8. The part time member of staff should therefore receive at least 28.8 hours of public holiday leave a year. This may be taken at any time in agreement with the employer.

If this best practice is not followed, it is potentially a breach of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (available from www.legislation.gov.uk).

However, some employers may not give full time workers a day off if they do not usually work on a public holiday day. For example, they may not give an annual leave day for a public holiday which falls on a Monday to a full time worker contracted to work five days a week, Tuesday to Saturday. In such cases, not giving the part time worker public holiday annual leave may not be unlawful as the part time worker is not being treated less favourably than a full time worker.

For more information on the rights of part-time workers, please see our guidance on part-time workers.

The following entitlements are taken from section 13 of the NHS Terms and Conditions of Service Handbook. This entitlement is for a full- time worker. Part-time staff receive a pro rata amount of annual leave and public holiday days.

• on appointment: 27 days leave and eight general public holiday days
• after five years service: 29 days leave + eight days general public holiday days
• after 10 years service: 33 days leave + eight days general public holiday days.

If you have previous reckonable service in the NHS this will also be counted towards your annual leave entitlement. For more information please see our guidance on Agenda for Change.

If you are employed within the NHS please also see annex 25 of the NHS Terms and Conditions for information about public holidays over the Christmas and New Year periods. 

Background

The European Working Time Directive gives workers and employees the right to four weeks of paid annual leave every year. This leave is known as statutory annual leave. 

The Working Time Regulations give workers and employees the right to an additional 1.6 weeks’ leave.

Employees can also be granted contractual annual leave as part of their terms and conditions of employment. For example, RCN members employed under Agenda for Change (AfC) are entitled to 27 days, 29 days or 33 days annual leave (inclusive of the four weeks statutory annual leave).

Workers and employees have the right to be paid their ‘normal’ pay during a period of annual leave. Historically, normal pay included things such as productivity bonuses and results-based commission payments. It also includes overtime.

Overtime

For the purposes of annual leave pay, overtime falls into three categories.

• Contractual overtime – that which your employer must offer you and you must work as a term of your employment contract.
• Non-contractual compulsory overtime – that which your employer does not have to offer you, but if it does, you must work it. 
• Voluntary overtime – that which you can refuse to work if offered.

In all cases, overtime is classed as hours worked in excess of your minimum contracted hours. It therefore applies to members working part-time hours as well as members working full-time. 

Annual leave pay

Workers and employees have the right to have contractual overtime taken into account when calculating annual leave pay. In 2014, in the case of Bear Scotland & Others v Fulton and Others, the Courts decided that workers and employees also had the right to have non-contractual compulsory overtime taken into account when calculating holiday pay for the four weeks’ statutory annual leave granted by the Working Time Directive. In 2019, in the case of East of England Ambulance Service NHS Trust v Flowers and Others, the Courts extended this to include regularly worked voluntary overtime. The Courts also decided that overtime had to be taken into account when calculating pay for annual leave granted under Agenda for Change.

For RCN members employed on Agenda for Change terms and conditions, overtime must be taken into account when calculating pay for all your annual leave. 

For RCN members not employed on Agenda for Change terms and conditions, overtime must only be taken into account when calculating pay for your four weeks’ statutory annual leave granted by the Working Time Directive. This does not apply to the additional 1.6 weeks leave granted by the Working Time Regulations.

For all RCN members, overtime will only count towards annual leave pay if you have been paid for that overtime. If, for example, you have taken time off in lieu, this time would not count when calculating annual leave pay.

Incorrectly paid annual leave

If you think you have not been paid correctly for your annual leave, you should approach your employer in the first instance. You should raise this with your line manager, using one of the letter templates below:

• for members employed on AfC terms and conditions in England and Wales
• for members employed on AfC terms and conditions in Scotland and Northern Ireland
• for members not employed on AfC terms and conditions in England and Wales
• for members not employed on AfC terms and conditions in Scotland and Northern Ireland 

Please do not delay in taking action if you believe you have not been paid correctly for your annual leave. If your line manager cannot or will not help, you should contact us for further advice. 

The time limits for making an Employment Tribunal claim are 3 months less 1 day from the date you received your last incorrect annual leave payment. In some circumstances, you may also be able to bring a County Court claim. If you believe you need to make a legal claim, you should contact us for further advice.

You should be paid annual leave at your normal rate of pay. Therefore if your normal rate of pay includes regular enhancements, these could be seen to be part of your normal rate of pay. Your employer should have a policy covering pay during annual leave.

If you work under Agenda for Change terms and conditions, your pay on annual leave is covered under section 13.9 of the NHS terms and conditions of service handbook. This states:

"Pay during annual leave will include any regularly paid supplements, including any work outside normal hours and high cost area supplements. Pay is calculated on the basis of what the individual would have received had he/she been at work."

You should check your bank contract for information on how annual leave for your bank work is calculated.

Sickness

ACAS guidance - Holidays and holiday pay

TUC publication: Working time, breaks and holidays - Know Your Rights