Agreement to Vary Holiday Dates Effective

In Industry & Commerce Maintenance Limited v Briffa UKEAT/0125/08, Mr Briffa was given one week's notice of termination of his employment by his employer. He was required to take 4 days' holiday in his last week to use up his outstanding holiday entitlement. The issue under consideration was whether or not this was lawful.

An Employment Tribunal held that the employer company breached Regulation 15 of the Working Time Regulations 1998 (the "WTR") which provides that an employer must give notice of holiday dates that is "double the amount of time to be taken." As Mr Briffa was not given 8 days' notice of his holiday, he could not legally be required to take it. Accordingly, Mr Briffa was awarded 4 days' pay in lieu of his holiday entitlement.

The Employment Appeal Tribunal (EAT) held that Regulation 15 of the WTR had been effectively varied by "relevant agreement". In the present case, there was a contractual term which covered the position and was legally enforceable between the parties. As such, the EAT allowed the appeal and Mr Briffa's award was set aside.