Lyons v Mitie Security Ltd UKEAT/0081/09

In this case the EAT confirmed that holiday leave not taken at the end of the leave year can be lost provided the employer has not unreasonably denied the employee’s request for leave.

An employee’s right to statutory leave is not inalienable. The statutory and contractual notice requirements have to be followed and this can result in the loss of the right to leave at the end of the year in respect of leave not already taken. Mr Lyons was a security officer. His holiday year ended on 31 March 2008. At the beginning of March he had 9 days’ leave still due to him. On 6 March there was no further work scheduled for him. He sent a fax to his employers requesting payment of those remaining 9 days before the end of the current leave year. That request was not dealt with. On 1 April Mr Lyons found out that his 9 days’ leave had not been paid and he raised a grievance. As he should have given a minimum of 4 weeks’ notice “wherever possible” for a leave request and as his annual leave could not be carried over to the following year, when his employers stated they were unable to pay him, he resigned. There was no previous case law in this subject. The case was remitted for re-hearing as the tribunal had not considered fully whether Mitie had breached the contractual provisions governing his right to take holiday.

Key point: If notice provisions are operated correctly, employers can deprive employees, who fail to comply the right to take holiday before the end of the applicable holiday year, of their leave under the Working Time Regulations 1998. However, employers may find it easier to provide a discretionary right to carry over a fixed number of days holiday to the following year where employees have not been able to exercise their full entitlement to holiday for clear good reasons, to avoid grievances and claims.