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Annual leave carry over

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Under the Working Time Regulations 1998, employees have the right to 28 days’ annual leave per annum. This can include the eight bank holidays in the UK, if the employer chooses. There is no right in the Working Time Regulations 1998 to carry forward untaken annual leave to the next holiday year. Does that mean, therefore, that any annual leave to carry over is lost?

This was the question referred to the Court of Justice of the European Union (CJEU) in the case of Max-Planck-Gessellschaft v Shimizu [2017]. German law meant that any untaken leave was lost, and the employee in question had not taken all his annual leave. The question referred to the CJEU was whether it is lawful to simply say that the leave is lost or whether the employee is able to carry over the annual leave.

The CJEU ruled that it is only lawful to say that leave is lost if the employee has ‘specifically and transparently’ been given the opportunity to take leave. This means that the employer must have reminded the employee of any outstanding leave, encouraged the employee to take it and made it clear that the leave would be lost if it were not taken.

(NB: This ruling only applies to the 4 weeks of annual leave that is allowed according to the EU Directive. The UK legislation is more generous than the minimum.)

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If you have any questions about annual leave, please contact our Employment Team.

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