Amendment to the Working Time Regulations - Removal of 13 Week Threshold

The DTI have announced the amendment to the Working Time Regulations ("WTR") made necessary by the decision of the European Court of Justice in the BECTU case. The amending regulations will remove the 13 week threshold for WTR minimum holiday rights with effect from 25th October.

During the first year, full leave accrues on day one (as required by EU law). However, employees cannot choose to take it all up front in their first year. With regard to employees starting on 26th October or later, only such leave as is deemed to have accrued on a monthly basis in advance can be taken. 1/12th of the entitlement is deemed to accrue on the first day of each month during the first year and the 'accrued' entitlement is then rounded up to the nearest half day. Employees whose employment ends during their first year will be entitled to payment in lieu of their untaken proportional entitlements (worked out on a daily basis). Thus, full-time employees in their first month will be able to take 1/12 of their entitlement (20/12 rounded up = 2 days) in that month, while an employee whose employment ended after 15 days say would be entitled to a payment in lieu of his untaken proportional entitlement (15/365 x 20 days = 0.82 day, less any leave taken). Employers can only require departing employees to refund pay in respect of excess holiday entitlement taken if there is a relevant agreement (such as a provision in an employment contract) to that effect. Requests to take leave in the first year will be subject to the same notice requirements as other leave.

(For those who have been following the progress of these regulations, the draft regulations published for consultation this summer had provided that, during the first year of employment, WTR holiday entitlement accrued on a monthly basis such that...

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