Even if a worker stands to lose any unused holiday entitlement at the end of the leave year because they have failed to follow the rules (Lyons v Mitie Security Ltd) the Employment Appeal Tribunal (EAT) has confirmed that workers must comply with employer's rules for taking annual leave (or, if none, the statutory rules) The Statutory Rules provide workers with an entitlement to 5.6 weeks holiday, including public holidays. A worker must give notice to his employer of the intention to take leave at least twice as many days in advance as the amount of leave he wishes to take. The employer has the right to refuse the leave by giving counter-notice. However, these Rules can be varied by agreement (e.g., a collective agreement or contract of employment) between employer and employee. In Lyons v Mitie the notice provisions had been varied by the contract of employment. Near the end of the relevant holiday year, Mr Lyons asked to take 9 days holiday. Mitie did not pay him for that holiday because he had not given the required four weeks notice. As carry over was not permitted he forfeited the untaken leave. Mr Lyons resigned and brought claims for constructive unfair dismissal; and pay in lieu of untaken holiday under the Working Time Regulations 1998 (WTR 1998) In deciding the case against Mr Lyons he EAT made it clear that an employee could lose the right to take untaken leave if the rules governing the giving of notice were not followed by the employee or if the employer legitimately refused the request on other grounds (e.g. staffing needs) thereby leaving insufficient time to take the leave before the expiry of the leave year. However, the EAT warned employers that they must not operate any relevant rules in "an unreasonable, arbitrary or capricious way so as to deny any entitlement lawfully requested." This 'use it or lose it' approach is unlikely to apply when the employee is unable to take holiday because of ill health. The European Court of Justice (ECJ) has already made clear )Stringer/Pereda) that sick employees can choose to carry untaken holiday over into a subsequent holiday year. The WTR 1998state that leave "may only be taken in the leave year in respect of which it is due". So, any tribunal considering the question of carry over in regarding a sick employee will need to decide whether they can interpret the WTR to give effect to the Stringer case.
