Background to Holiday Legislation
EU Directives require that Member States take measures in order to ensure that every worker is entitled to paid leave of at least four weeks per year. The terms of the entitlement to leave, are to be provided by national legislation and/or practice. States may introduce laws which provide more favourable protections for the health, safety and welfare of workers, by law or through the application of collective agreements.
Holiday leave entitlement is provided for in Part III of the Organisation of Working Time Act, 1997. The legislation applies to all employees, including State sector employees and agency workers. It does not apply to members of An Garda Síochána and the Defence Forces. The entitlement does not apply to persons whose relationship is under a contract for services (independent contractors).
Statutory Minimum Holidays
Statutory minimum holidays are prescribed. Where an employee works at least 8 weeks in the year, he is entitled to an unbroken leave of up to 2 weeks Holiday leave must be paid leave. It is calculated as follows.
- 4 working weeks in any leave year, in which he or she has worked 1,365 hours; or
- a third of a working week for each month in the leave year, in which he works at least 117 hours or
- 8 percent of the hours that he works in the year, subject to a maximum of 4 working weeks
The employee is entitled to choose whichever one of the above options, yields the longer leave period.Holiday pay should be paid at the normal rate. There is a mechanism laid down by regulations for the calculation of holiday pay.
The times at which annual leave is to be taken is determined by the employer. However, the employer must take account of certain matters, including in particular the need for the employee to reconcile home and family responsibilities with work responsibilities, and the opportunities for rest and recreation available to the employee.
The leave year begins on 1st April in each year. The employer must consult with the employee or trade union. With the consent of the employee, leave may be taken during the leave year or within 6 months after the leave year.
Qualifying Periods I
The statutory leave year commences on 1st April and ends on the following 31st March. Employers may use a different year to calculate the entitlement. However, the statutory minimum entitlement continues to apply, based on the statutory year commencing 1 April.
Hours include hours in which persons are entitled to breaks during the course of employment. Hours worked includes overtime. Annual leave itself is calculated as working time for this purpose.
Working time includes the time that the employee is at his place of work or at his employer’s disposal, carrying out or performing, the activities or duties of his work. “Work” is interpreted accordingly. Time spent on training may qualify as working time for the purpose of the calculation of the holiday entitlement.
Qualifying Periods II
Off-the-job training is potentially “working time”, depending on the circumstances. If it is an employer’s requirement, it is likely to count as working time.
The Labour Court has held that off-the-job employment by a FAS trainee was “working time” for the purpose of the Act. It concluded that in the circumstances, the training was part of the contract of apprenticeship. The off the job training was with full pay under the statutory rules applicable to the apprenticeship.
Employees who work short time are entitled to proportionate annual leave. The proportion is based on the proportion of hours actually worked, relative to the statutory benchmark.
Family Leave and Holidays
Where there is already an entitlement to a day off on a public holiday, a further entitlement may arise in respect of the public holiday. Employees on protective leave are entitled to public holidays leave or monies in lieu. It is applicable to parents during the first 13 weeks only.
Periods of leave under maternity legislation (including maternity leave, additional maternity leave, health and safety leave) are deemed time in employment. An employee is entitled to take annual holiday leave outside of the maternity leave period.
Parental leave and force majeure leave does not affect entitlement. The first thirteen weeks of carer’s leave is similarly protected.
EU legislation on maternity leave provides that where there is a greater contractual entitlement to leave, under the employment contract or collective agreement, that the entitlement is preserved in respect of periods of protective leave.
The method of calculation of the normal weekly rate of pay is prescribed. If the pay is calculated by reference to a time rate, a fixed rate, as a salary or at any other rate, that does not vary in relation to the work done, the normal rate is the sum, including any regular bonus or allowance which does not vary in relation to the work done by the employee (but excluding overtime pay), that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave or part thereof commences, or on cessation of employment, if this occurs.
If the employee’s pay is not calculated wholly by reference to the above factors, the normal weekly rate of pay is the average weekly pay (excluding overtime) for the 13 weeks ending before the commencement of the leave or the cessation of employment.
Holiday pay is subject to the Payment of Wages Act. The general provisions in relation to payment and deductions apply. An employee must be paid annual leave prior to the commencement of the leave. The minimum period of paid leave may not be replaced by an allowance in lieu, except where the employment relationship has terminated.
Part Time Workers
Where an employee changes from working full-time to part-time within a leave year, a proportionate amount of full holiday leave entitlement is preserved under the legislation applicable to part-time work.
Where an employee works a contracted number of hours per week on the basis of an hourly rate, the holiday entitlement is based on this fixed or other rate that does not vary in accordance with the work done. Additional hours may be deemed overtime and may not carry an entitlement to holiday pay. The entitlement is based on the normal weekly rate.
Terms in contracts which purport to exclude the legislation are void. Where an additional element of salary or pay is provided, which is expressed to represent holiday pay, it is arguably inconsistent with the Act. It appears that an employee may retain such rolled up pay arrangements and claim statutory holiday rights.
On one view, the employee could take statutory leave periods without pay. An alternative, probably better view, is this would be inconsistent with the Directives and the legislation. It would disincentivise taking time off, contrary to the basic health and safety requirements of the legislation. It would not give the employee, the requisite periods of recreation and break from work responsibilities.
If there is a contractual sick pay scheme, which grants an entitlement to a day off, a further day may be required in respect of the public holiday, depending on the interpretation of the scheme. The basic principle is that entitlement to holidays is preserved during periods of sick pay. This is based on the principle that sick pay is for the purpose of recuperation and recovery, while annual leave is for the purpose of rest. The issue becomes more difficult in the context of longer term sick leave.
The European Court of Justice has held that persons who are in fact on sick leave during scheduled annual leave are entitled to annual leave, in addition to the sick leave period. The court so held because holiday leave is an important social right which is to be preserved notwithstanding prolonged sick leave. This position has been confirmed in Irish law by Section 86 of Workplace Relations Act 2015 which inserts a new section 19(1)(A) into the Organisation of Working Time Act 1997.
It would appear that this may be a required by way of extra payment or at the end of the period of illness. It is not clear whether rights in lieu of actual leave can be asserted, where there has been a very prolonged sick period. This position is not directly reflected in the Irish legislation.
Choosing the Period
The employer may determine when annual leave is taken. The employer is to consult with the employee or his trade union, at least one month before leave is granted. The employer must take account of the need for the employee to reconcile work and any family responsibilities and of the opportunities for rest and recreation available to the employee.
In granting leave to part-time workers, account may be taken of the underlying pattern of work. It should generally reflect the days the employee actually works.
On cessation of employment, an employee is entitled to untaken leave for the current and preceding leave year, must be paid.
The European Court has indicated that an unlimited accumulation of annual leave entitlement is, at some point, outside the Directive. This is because it would be inconsistent with the basic purpose of the legislation. It is permissible and appropriate to provide limits on carrying over leave, in an employment contract.
Public Holidays I
There are nine public holidays at present namely Christmas Day, St Stephen’s Day, New Year’s Day, St Patrick’s Day, Easter Monday, the first Mondays in May, June and August and the last Monday in October
An employee who has worked at least 40 hours during the previous 5 weeks prior to a public holiday, is entitled to
- a paid day off on that day;
- a paid day off within a month of that day;
- an additional day of leave; or
- an additional day’s pay
whichever of the four options, his employer decides.
An employee who has accrued holiday entitlements is entitled to be paid on cessation of employment for them, at the appropriate rate.Full-time employees are entitled to public holiday leave. Part-time employees are entitled to public holiday leave if they have worked at least 40 hours during the five weeks prior to the holiday.
Public Holidays II
An employee has no public holiday entitlement who is absent from work
- for in excess of 52 weeks, by reason of injury in an occupational accident;
- for in excess of 26 weeks by reason of injury in any accident
- for 12 weeks for any absence authorised by the employer including layoff or due to a strike in the business or industry concerned.
The employer may grant the public holiday entitlement lave by way of a day off on the holiday, a day off within a month, an extra day’s annual leave or an extra day’s pay. The employee can request that the employer, at least 21 days prior to the relevant holiday, determine how it should be given.
Payment Rate I
Regulations under the Organisation of Working Time Act set out the basis on which pay for public holidays is to be calculated. Employees who are required to work on the public holiday are entitled to a day’s pay, where this is granted in lieu of the public holiday. The amount is to be at the normal daily rate, excluding overtime. If the holiday is on a day on which the employee does not normally work, it is based on a fifth of the normal weekly pay.
Where an employee has varying hours and normally works on a public holiday, regulations provide a formula for the additional payment in lieu of the public holiday. This is calculated on the basis of the normal payment for the day worked before the last Monday. If the employee does not usually work on the public holiday, he is entitled to payment based one fifth of the normal weekly hours, prior to the public holiday.
Payment Rate II
The calculation is based on a fifth of normal weekly remuneration, based on normal weekly working hours, last worked before the public holiday. Where the employee has not worked normal / regular working hours, the rate is one fifth of the average weekly pay over the 13 weeks before the holiday. If the employee worked at no time during that period, the reference period is the 13 weeks before the day on which the employee last worked before the public holiday.
Where a person does not work, or is not normally required to work on a public holiday, and because of job sharing or similar arrangements, works part of the time required to be worked by a whole-time employee during identical or similar work and is paid based in accordance with a fixed salary, the rate of day on the public holiday is one tenth of the amount paid in respect of the last two normal working weeks. The employee is not to be paid more than half of the rate he would have been entitled to receive for working, had he worked on that day.
An employer may substitute church holidays for public holidays, provided that at least 14 days’ notice is given. These days include Ascension Thursday, Feast of Corpus Christi, January 6, August 15, November 1 and December 8. This does not apply where they fall on a Sunday. The days may be varied by ministerial order.
Special public holidays may be provided for by ministerial order on a one-off or recurrent basis. Additional public holidays may be prescribed. If a public holiday falls on a Sunday, it is transferred to the following weekday.
Where an employee ceases to be employed on the weekend before a public holiday, and the employee has worked for at least the previous four weeks, the employee is entitled to an extra day payment in respect of the public holiday.
Awards of redress may include payment for the un-awarded holiday time or pay in lieu and by way of way of a deterrent in respect of future breaches. However, a significant award of compensation is only appropriate where the breach is deliberate and conscious. Compensation may be awarded for other loss and inconvenience caused.
Employers must maintain records of public holiday and annual leave. They must be retained for at least two years. They may be inspected by authorised officers of the WRC. Failure to keep the requisite records is an offence.
In proceedings in respect of the breach of the Act, the onus of proof is on the employer to prove that the act has been complied with. The failure to keep the requisite records is an offence, subject to prosecution on a fine up to €2500 on summary conviction.
A complaint may be made to a WRC within six months. This may be extended to up to 12 months for good cause. The WRC may hear and determine the complaint. The adjudication may be appealed to the Labour Court to hear the appeal and determine it.
Failure to implement an order may be the subject of an application to the Circuit Court for enforcement. A claim in respect of failure to accord the entitlements may be brought in proceedings in respect of unfair dismissal and other legislation.
An employee may not be penalised, for having in good faith opposed by lawful means, acts which are unlawful under the legislation.
References and Sources
Employment Law Meenan 2014 Ch.11
Employment Law Supplement Meenan 2016
Employment Law Regan & Murphy 2009 ( 2nd Ed 2017)
Employment Law in Ireland Cox & Ryan 2009
Other Irish Books
Employment Law Forde & Byrne 2009
Principles of Irish Employment Law Daly & Doherty 2010
Employment Law Contracts (Book & CD-ROM) Beauchamps, Solicitors 2011
Organisation of Working Time Act 1997
Organisation of Working Time Act (Commencement) Order 1997, S.I. No. 392 of 1997
Organisation of Working Time (Determination of Pay For Holidays) Regulations 1997, S.I. No. 475 of 1997
Organisation of Working Time (General Exemptions) Regulations 1998, S.I. No. 21 of 1998
Organisation of Working Time (Code of Practice on Compensatory Rest and Related Matters) (Declaration) Order 1998, S.I. No. 44 of 1998
Organisation of Working Time (Exemption of Civil Protection Services) Regulations 1998, S.I. No. 52 of 1998
Organisation of Working Time (Breaks At Work For Shop Employees) Regulations 1998, S.I. No. 57 of 199
Organisation of Working Time (Code of Practice on Sunday Working in The Retail Trade and Related Matters) (Declaration) Order 1998, S.I. No. 444 of 1998
Organisation of Working Time (Public Holiday) Regulations 1999, S.I. No. 10 of 19991286
Organisation of Working Time (National Day of Mourning) Regulations 2001, S.I. No. 419 of 20011287
Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001, S.I. No. 473 of 2001
Organisation of Working Time (Inclusion of Transport Activities) Regulations 2004, S.I. No. 817 of 2004
Organisation of Working Time (Inclusion of Offshore Work) Regulations 2004, S.I. No. 819 of 2004
Organisation of Working Time (Exemption of Civil Protection Services) (Amendment) Regulations 2009, S.I. No. 478 of 2009
Organisation of Working Time (Non-Application of Certain Provisions to Persons Performing Mobile Road Transport Activities) Regulations 2015, S.I. No. 342 of 2015
Periodicals and Reports
Employment Law Yearbook (annual) Arthur Cox
Employment Law Reports
Irish Employment Law Journal
Employment Law Review
Dismissal & Redundancy Consolidated Legislation Barrett, G 2007
Irish Employment legislation (Looseleaf) Kerr 1999-
Employment Rights Legislation (IEL offprint) Kerr 2006
Employment Law Nutshell Donovan, D 2016
Employees: Know Your Rights Eardly 2008
Essentials of Irish Labour Law Faulkner 2013
Workplace Relations Commission http://www.lrc.ie/en/
Irish Human Rights and Equality Commission https://www.ihrec.ie/
Health and Safety Authority http://www.hsa.ie/eng/