However, last month, the European Court of Justice issued an opinion that the 13-week qualifying period is contrary to European law.
What happened in court?
BECTU, a trade union in the broadcasting and film industries, sought to challenge the legality of the 13-week qualifying period on the grounds that it is contrary to European law. The union has many members who work on short-term contracts, often less than 13 weeks in duration, and who therefore do not qualify for the right to annual leave.
The advocate-general of the European Court of Justice held that the right to paid leave is a fundamental social right, and that the introduction of the 13-week qualification period by the British government was unlawful.
How likely is the ruling to make its way into the English workplace?
This was not the final decision of the court, but it is rare for the court to disagree with the finding of the advocate-general.
This will have a significant impact on the rights of workers with short-term contracts, including in construction
Assuming that the court follows the decision, it will have a significant impact on the holiday rights of all workers in industries where short-term contracts are common, including construction.
When will it take effect?
The decision will not take effect until the full court has given its judgment. This could yet be some months away. It would then be necessary for the government to amend the Working Time Regulations. Strictly speaking, workers will be able to claim against the state for its failure to transpose the European Directive correctly into English law.
What can employers do?
Employers would be well-advised to prepare for the change – once the court has given its final decision there will no longer be any basis for refusing any holiday payments because the contract is fewer than 13 weeks in length. Employers are directly responsible for holiday pay.
Michael Ryley is a partner and head of employment law at Masons.