Your rights: Right to save days in lieu

By CHRIS PATTERSON

Q. I work on every public holiday, except for Christmas Day, and wish to save my days off in lieu for any family emergencies.

When I returned from four weeks' holiday my boss informed me that I had to use these lieu days up as soon as possible.

My collective employment agreement states, under public holidays, that employees may take lieu days after giving 14 days' written notice to their manager. Under annual leave it states that employees must take leave within one year of their annual leave entitlement falling due.

Finally, under service leave it states that employees will lose their service leave if it is not taken within five years of entitlement.

I wish the following to be clarified: can my employer tell me when to use my days in lieu?

Is there anything in the Holidays Act stating employers have that right and can force you to use up your lieu entitlements?

Can they take your lieu entitlements away from you?

What are my options?

A. It is preferable but not mandatory for you and your employer to agree when you will be taking your statutory leave days in lieu. I assume that there is no such agreement.

Your employer cannot unilaterally determine when you will take your statutory leave days in lieu.

There is nothing in the Holidays Act 1981 which entitles employers to force an employee to take their statutory leave days in lieu. In your case, you are entitled to save and use them as you wish.

Your employer cannot take away your entitlement to statutory leave days in lieu.

Your entitlement will continue to accrue until you either take your statutory leave days in lieu or your employment comes to an end. Your employer will have to cash up your entitlements once your employment is over.

Your best option is to try to work through this issue with your employer.

In the event that you cannot reach an agreement, you could contact a labour inspector at the Department of Labour. They are responsible for ensuring that the Holidays Act 1981 is complied with.

You could alternatively contact your union or other professional employment law adviser. A letter from your representative outlining your rights might be appropriate.

Dol

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Chris Patterson is a barrister specialising in employment law. Answers are of a general nature only and should not be substituted for specific legal advice.