A WORKING HOLIDAY

Industrial & Commercial Maintenance Limited v Briffa

The Working Time Regulations (WTR) state that employers must give a certain amount of notice when requiring a worker to take holidays. The Employment Appeal Tribunal (EAT) said in Industrial & Commercial Maintenance Limited v Briffa that employers can make employees take their holidays without complying with the statutory notice if there is a term in the contract to that effect.

Basic facts

Mr Briffa started work for the company on 14 March 2007. On 10 August 2007 he was given one week’s notice and told by letter that “insofar as you have accrued but not taken paid holiday you must take the holiday next week and will be paid accordingly.”

Mr Briffa had received and signed a copy of the company's standard conditions of employment when he had worked for them previously between May 2005 and February 2007. The company had made a number of changes to their terms on 4 July 2005, including one stating that if an employee was given statutory notice and was not required to perform physical work during that notice period, then they would be regarded as being on holiday during the period of notice.

In October 2007, Mr Briffa lodged a tribunal claim, stating that the company did not have the right under the Working Time Regulations to require him to take his holiday and claimed outstanding holiday pay. The company argued that he was not entitled to it because of the contractual variation.

Tribunal decision

The tribunal judge accepted that the variation was a term of Mr Briffa’s contract, but went on to hold that it did not comply with regulation 15 WTR, which requires employers to give notice of holiday dates which are double the amount of time to be taken. In this case, the company should have given eight days notice prior to 10 August.

As the company had not given the correct notice, the tribunal said it was in breach of regulation 15, entitling Mr Briffa to four days’ holiday pay.

EAT decision

But the EAT disagreed. It said that the company did not have to give the requisite notice of holidays as required under the WTR because regulation 15(5) states that any rights or obligations “may be varied or excluded by a relevant agreement".

A "relevant agreement" is defined in regulation 2 as a workforce agreement, incorporated collective agreement or, as in the present case "any other agreement in writing which is legally enforceable as between the worker and his employer".

As there was a term in Mr Briffa’s contract of employment which stipulated that he could be regarded as being on holiday during the notice period and which was legally enforceable between the parties, this "relevant agreement" overrode the notice requirements in regulation 15.

The EAT also pointed out that the policy behind the WTR is "to ensure that workers take sufficient holiday with pay. In this case, the Respondent was entitled to require the Claimant to work his week's notice. They did not do so; he was given the week off. Thus, the purpose behind the Regulations, implementing the Working Time Directive, has been fulfilled in this case”.