The EAT has confirmed that an employer was entitled to require an employee, who was working out his notice period, to take any accrued holiday during that period.


In this case, the employee’s contract stated ‘If the individual gives or receives statutory notice and is not required to perform physical work during that period of notice, the employee shall be regarded as being on holiday during the period of notice’.

The employee argued that the Working Time Regulations 1998 (WTR) require an employer to give a worker a specified period of notice before requiring him or her to take leave on particular days. However, the employer’s contention was that Reg.15(5) of the WTR allows this rule to be varied by a ‘relevant agreement’, which can include the terms of the employment contract, and this was upheld.

Effect on employers

The general rule under Reg.15(5) of the WTR is that the employer may require a worker to take holiday on certain days only if he gives the worker twice as many days advance notice as the number of days holiday to which the notice relates. However, as this case confirms, it may be useful for employers to review their employment contract standard terms to see if they could be amended to allow more flexibility, particularly where an employee with accrued holiday entitlement is working out his or her notice period, which may be cost effective.

Industrial & Commercial Maintenance v Britta UKEAT/ 0125/08