With the advent of spring, workers’ fancies turn to holidays. Many queries on holiday entitlement invariably come into the Workers Rights Centre (WRC) at this time of year. The statutory entitlement with regard to the taking of holidays is not as benevolent as might be assumed. Employments with more effective trade union structures have holiday arrangements and entitlements for members which inevitably surpass those without effective union representation. This article deals with the baseline entitlements under the Organisation of Working Time Act.
How much paid leave is an employee entitled to?
- Four working weeks for any leave year in which he/she works at least 1,365 hours
- One-third of a working week for each month in the leave year in which he/she works at least 117 hours; or
- Eight per cent of the hours that he/she works in a year subject to a maximum of four working weeks.
In a situation where more than one of these options applies, the employee is entitled to whichever of these periods of leave is greater. If the employee has worked more than the eight months in a year, then he/she is entitled to an unbroken period of two weeks, subject to the provisions of any collective agreement, ERO or REA in place at the time.
How much is an employee paid and how is this holiday pay sum calculated where pay does not vary from week to week?
The normal weekly sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) is paid in respect of the normal weekly hours last worked by the employee before the annual leave.
What’s the calculation where pay varies from week to week?
The average weekly pay (excluding any pay for overtime) of the employee which is calculated over 13 weeks immediately prior to the taking of the leave.
The leave year commences on 1st April but can an employee carry over any untaken leave?
The employee is supposed to take all leave within the leave year. If a case arises where the employee could not take the leave within the leave year for a business reason, e.g. where no cover was provided due to the illness of another employee, then the employer can allow the employee, with the consent of the employee, to carry over the leave for it to be taken within six months of the following leave year.
If, on the other hand, the employee had ample opportunity to take annual leave, but chose not to, then there is no entitlement to carry over surplus days. In some employments, either through custom and practice or collective agreement, there may be opportunity to carry over leave but there is usually only a narrow window allowed for taking such leave in the following leave year.
When can leave be taken?
The employer determines when leave has to be taken but he/she must bear in mind a number of listed concerns i.e. the need for the employees to reconcile work and any family responsibilities and the opportunities for rest and recreation available to the employee. The employer is also obliged to consult with the trade union, or the employee, at least four weeks before the leave is due to be taken.
Where can an employee go with a complaint?
Firstly, the matter should be dealt with at local level with the assistance of the union representative. In the absence of a union representative, the member should seek direct advice from the union. If the matter remains unresolved after using the internal grievance procedure then the employee may consider taking a case to the Rights Commissioner. There is a six month limit from the time of the breach, usually from the end of the leave year, but there can be circumstances where a breach may be earlier. Further advice should be sought on this. An award by a Rights Commissioner may not merely be confined to compensation for the loss, as is the norm with most other segments of employment legislation, but an award can also include a sum which may be classed as a deterrent against future transgressions by the employer.
This article is not intended to be a legal guide to the annual leave provisions under the Organisation of Working Time Act. SIPTU members should contact their local representative or in the alternative contact SIPTU WRC at 1800 747881.