Case study: Calculating annual leave

Jane began working for her employer 10 months ago. She works a 35-hour week but was off work sick for 3 weeks during this time. When she asked for holidays, her employer told her she could have the odd week off when business was slack. The employer told her since she had been off work sick, she could not expect to get all her annual leave. What are her rights?

Provided Jane doesn't have a contract of employment that gives her greater rights, she is relying on the provisions in the Organisation of Working Time Act 1997. In the 10 months, she worked 1505 hours (43 weeks x 35) less 105 hours (3 x 35) when she was off work sick, giving a total of 1400 hours worked. This gives an entitlement to 4 weeks' leave, including at least 2 weeks' unbroken leave as she has been employed for more than 8 months.

Jane's her entitlement might be affected by the actual time of the year she started the employment. Under the legislation, the leave year runs from April to March although some employers use the calendar year. If, for example, Jane started work in January and was out of work sick in June, her annual leave entitlement is as follows:

1st leave year: she worked from January to March. As she worked more than 117 hours in these 3 months she is entitled to one third of a week x 3 which equals one week's annual leave.
2nd leave year: she worked from April to October. She does not yet have the required 1,365 hours to be entitled to 4 weeks' annual leave in the current leave year. Although she was sick in June, she has worked more than 117 hours in 6 of the 7 months. This gives her an entitlement to one-third of a week x 6 which equals 2 weeks' holidays.

Over the two leave years involved therefore, she has earned a total of 3 weeks' holidays. This is not affected by the fact that Jane was off work sick for 3 weeks.

Jane's employer, in deciding when the leave may be taken, must take into account any family responsibilities that Jane may have, in addition to the opportunities that may be available to her for rest and recreation. She would also be entitled to holidays equal to 8% of the hours she worked in June.

If Jane has difficulty in getting her annual leave entitlement she should refer her case to a Rights Commissioner.