Holiday notice

Lyons v Mitie Security Ltd

The 1998 Working Time Regulations (WTR) state that workers must abide by certain notice provisions when asking to take their statutory holiday entitlement. However, in Lyons v Mitie Security Ltd the Employment Appeal Tribunal (EAT) said that workers can lose any holiday that they had not taken by the end of a leave year as long as the employer had not imposed the notice provisions in an unreasonable or arbitrary way.

Basic facts

Mr Lyons worked as a security guard for Mitie but was only paid for the hours he worked, which were not guaranteed. Clause 5 of his contract stated that he was entitled to four weeks’ paid holiday but that he had to give four weeks’ advance notice of any holiday requests on a standard company form. The holiday year ended on 31 March every year.

At the beginning of March 2008, Mr Lyons had nine days' leave still due to him. Mitie failed to provide him with any shifts and it looked increasingly as if he would not receive any further work for that month. On 6 March Mr Lyons sent a fax asking to be paid for the nine days leave still due to him. He then lodged a grievance when he did not receive the payment. The company replied that as he had not given four weeks notice of the request and as it could not be carried over, he had to forfeit it.

Mr Lyons resigned and made a number of claims, including one for breach of contract for unpaid holiday leave.

Relevant law

Regulation 13 of the WTR gives workers the right to four weeks’ paid annual statutory leave.

Regulation 15 states, among other things, that employees must give statutory notice of any holiday request but that the notice provisions can be varied by contractual agreement.

Tribunal decision

The tribunal rejected Mr Lyons’ claim, saying it was not a breach of contract for Mitie to refuse to grant him the leave, and therefore to pay him holiday pay.

EAT decision

The EAT said that the question was whether the notice requirements in regulation 15 (both statutory and contractual) “are superseded by an inalienable right of an employee to take paid leave within the leave year pursuant to the entitlement granted in Regulation 13”.

It concluded that this was not an easy question to answer, but “the absence of case law would suggest that employees have not been denied their reasonable requests for holiday entitlement, even towards the end of a leave year”.

It decided that the right was not, however, inalienable (in other words, it was not absolute) because it was “subject to the notice provisions ... set out in Regulation 15 subject to any contractual variation. Clearly that mechanism must operate during the whole of the leave year and the mechanism must not be operated by an employer in an unreasonable, arbitrary or capricious way so as to deny any entitlement lawfully requested. But it does seem to us that the mechanism, if operated correctly by both employee and employer, could result ... in the loss of the right at the end of the leave year in respect of leave not taken”.

As the tribunal had not properly dealt with whether there had been a breach of the contractual provisions in relation to holiday entitlement, it would remit the case back to a different tribunal for a re-hearing.