All workers in the UK have a right to holiday pay; one week’s pay for each week of statutory leave. The amount to which they are entitled is calculated by reference to the hours worked and how they are usually paid.
For fixed hour workers, this is a fairly simple process, but for casual and zero hour contract workers, the calculations get trickier as businesses need to consider the average number of hours worked to determine the amount of holiday pay the worker is owed.
As a result, rolling up workers’ holiday pay into their basic pay used to be fairly standard practice, especially for flexible workers. However, following case law at the European level in 2006, the practice of rolled up holiday pay is now technically unlawful in the UK.
That said, rolled up holiday pay is still used by some businesses, especially in relation to casual or zero-hour contract workers; these workers may even prefer their holiday pay to be rolled up into their basic pay. So, why do some businesses continue to pay their workers rolled up holiday pay, what are the risks of doing so and what can businesses do to minimise these?
What is rolled up holiday pay?
Rolled up holiday pay is a system by which businesses include their workers’ holiday pay in their basic pay, rather than paying them when their holiday is actually taken. It results in a slightly increased hourly rate for the worker and streamlines the administrative process for businesses which do not then have to calculate a worker’s holiday entitlement.
Is rolled up holiday pay allowed?
Following the case of Robinson-Steele v PD Retail Services and other cases [2006] in the European Court of Justice, rolled up holiday pay is not, strictly speaking, permitted; payment for holidays should be made when the actual holidays are taken.
The argument against the use of rolled up holiday pay is that workers are deterred from taking holiday as they are not being paid directly for it. The European Court urged EU member states to take necessary steps to end the practice. Notwithstanding the European Court’s stance, the UK government has not put in place legislation prohibiting the use of rolled up holiday pay, although it does in non-statutory guidance, state that any contract which includes rolled up holiday pay should be renegotiated.
How do you calculate rolled up holiday pay?
Standard practice is to increase a relevant worker’s hourly rate by 12.07%. This is calculated on the basis of a statutory entitlement of 5.6 weeks holiday per year. By way of example:
52 weeks per year minus 5.6 weeks statutory holiday entitlement = 46.4 working weeks
(5.6 weeks statutory holiday entitlement divided by 46.4 working weeks) multiplied by 100 = 12.07%
The calculation becomes more complicated for those working irregular hours and who therefore receive different pay amounts across different pay periods. In such cases, the employer should use the reference period of the worker’s previous 52 paid weeks to work out how much the individual should be paid for a week’s annual leave.
Why do business still use rolled up holiday pay?
Businesses employing casual and/or zero-hour contract workers are more inclined to use rolled up holiday pay for ease. Calculating a flexible worker’s holiday leave entitlement and the amount of holiday to which they are entitled can be administratively onerous and factoring in annual leave can cause problems when drawing up rotas. In addition, the need to take overtime and commission into account when calculating holiday pay can be complex when dealing with flexible workers. As such, it is often simpler for businesses to simply pay their workers slightly more in their basic pay. Workers themselves are often content to receive rolled up holiday pay as they are then not forced to take holiday and can earn a higher hourly rate.
The European Court of Justice’s judgment also creates some uncertainty the position of set-off and the unequivocal position has not been considered in court since. The court held that amounts already paid as rolled up holiday pay could be set-off against holidays taken in the future, provided that the holiday pay terms were open, understandable and transparent.
This could be interpreted in several ways:
- Rolled up holiday pay can be used to set off holiday pay for any holiday;
- Rolled up holiday pay can be used to set off holiday pay, provided that the pay has been received prior to the holiday in question. For example, a business’ holiday year runs from January to December and a worker decides to take a week’s holiday in September. Provided that the worker has received sufficient rolled up holiday pay between January and September, it can be set-off against the holiday pay to which the worker is entitled in September; or
- Set-off was only permitted in relation to rolled up holiday pay already paid at the time of the court’s ruling.
- Some businesses interpret the ruling to mean that set-off is possible, provided that workers are fully aware of the holiday pay arrangements.
What are the rules for zero hour contract workers?
Zero hour contract workers are entitled to paid time off work. As with any rolled up holiday pay, it is technically illegal to use rolled up holiday pay for zero hour contract workers, although many businesses still do so in order to simplify holiday payments.
Holiday pay entitlement for zero hour contract workers is calculated using their average pay over the previous 52 weeks in which they actually worked. Any weeks during which the zero hour contract worker was not working should be disregarded. This may mean the pay reference period is longer than 52 weeks, although it cannot go back further than 104 weeks.
It is important that the basic pay rate and the rolled up holiday pay are clearly differentiated on the worker’s payslip.
What are the risks for employers of using rolled up holiday pay?
As rolled up holiday pay is technically illegal, businesses who use it do face some risks.
- Potential double payment. If a worker successfully argues that they have been deterred from taking their holidays, they may be entitled to ‘just and equitable’ compensation. As a result, the business may have to pay that worker twice for their holiday, firstly in the rolled up holiday pay and secondly as compensation. An alternative to this is that workers may be able to carry their holiday over to the following holiday year; if they then leave the business, they can claim payment in lieu of their holiday on termination of their contract.
- Workers who have irregular hours may not receive the correct amount of holiday pay under the rolled up holiday pay system. They may receive too little or too much depending on the number of hours that they have worked. There is a risk that this could potentially result in a claim against the business for an unlawful deduction of wages.
- If, in the future, confirmation is obtained that set off was only permitted in relation to rolled up holiday pay already paid at the time of the court’s ruling, that is in 2006, businesses which have continued to use rolled up holiday pay could face substantial liability.
- At the very least, a worker could bring a grievance against the business for paying holiday pay incorrectly, which will take up management time.
Ideally, businesses who use rolled up holiday pay should rethink their systems and amend their contracts to provide that workers will receive holiday pay as and when they take their holidays. Software systems can be acquired which simplify the administrative burden of working out a casual or zero hour contract worker’s holiday entitlement and the UK government’s website also includes a calculator to assist with this.
A business which decides to continue using rolled up holiday pay should ensure that:
- The system is very clear and open to workers. For example, the use of rolled up holiday pay should be raised with workers as part of the hiring process and written confirmation received from them that they have chosen to take rolled up holiday pay but understand that they are able, if they so wish in the future, to choose to take paid annual leave. (However, bear in mind that, according to the European Court of Justice, it is not possible for workers to contract out of their holiday pay rights);
- Payslips make clear what element of a worker’s pay is holiday pay and what is basic pay; and
- Under no circumstances, should businesses prevent workers from taking annual leave; ideally, businesses should be proactive in encouraging their flexible staff members to take holiday.
Need assistance?
As employment law specialists, we can assist if you have any queries relating to holiday pay and employee entitlements to pay and time off work. Speak to our experts today for advice on using rolled up holiday pay or alternatives to suit your business.
Rolled up holiday pay FAQs
What is rolled holiday pay UK?
Rolled up holiday pay in the UK is where businesses pay workers a higher basic pay rate to include their holiday pay entitlement. They do not receive holiday pay if they then choose to take a holiday.
Is rolled up holiday pay legal in the UK?
Technically, holiday pay is unlawful in the UK following a ruling on the issue by the European Court of Justice in 2006. That said, the UK government has not passed legislation to this effect and some businesses do continue to use it. There are also indications that rolled up holiday pay may be legally reinstated following the Taylor Review of Modern Working Practices.
How is rolled up holiday pay calculated?
Rolled up holiday pay is usually calculated by increasing a worker’s basic pay in line with their annual leave entitlement. For someone entitled to the statutory minimum of 5.6 weeks of annual leave a year, their basic pay would be increased by 12.07%.
Last updated: 8 June 2023
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
