Can you force staff to take holiday during their notice?

Holiday request

Employees who’ve resigned often believe that they have an automatic right to take any unused holiday during their notice period. In reality they don’t - that’s because you always have the final say on whether or not a holiday request meets your business needs.

If it doesn’t, you can refuse the employee’s holiday request and they can’t object.

Pay in lieu

Where you refuse a holiday request during the notice period, you will have to pay the employee in lieu of any accrued but untaken holiday entitlement which they have remaining on the termination of their employment. This means that there’s a financial incentive for you to grant their request.

But what about the opposite situation - can you force an employee to take some or all of their unused holiday entitlement during the notice period if this is going to suit you?

Working time

The Working Time Regulations 1998(the Regulations) permit you to nominate specified days upon which an employee must take some or all of their statutory minimum holiday. This includes during their notice period.

To rely on this provision, you must give the employee advance written notice of your requirement which is at least twice as many days as the number of days’ holiday that you want them to take. Your written notice must also specify the days on which the holiday must be taken.

Giving notice

For example, if you want the employee to take one week’s accrued holiday during their notice period, you would need to give them at least two weeks’ notice of the specific dates.

This may not be a viable option where an employee has a short notice period as there might not be sufficient days remaining to give them the required length of notice required by the Regulations .

Different rules

The Regulations also permit you to have different notice of holiday rules in your employment contracts. For example, you could state either in a specific contractual clause or a holidays policy which has contractual force that you don’t have to give any minimum notice to require an employee to take accrued unused holiday during their notice period (click here ).

Tip. If you’ve taken this approach, you may tell an employee who is working out their notice period that their holiday is to begin immediately. You can do this by issuing our notice to take holiday during notice period (click here ). It can be used in both dismissal and resignation situations.

Tip. If requiring the employee to take holiday during their notice period doesn’t exhaust all of their unused holiday entitlement, you’ll still need to pay them in lieu for all remaining untaken holiday on the termination of their employment.