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David Ludlow

Barlow Robbins

Partner And Head of Employment

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Ask the Expert: Can staff claim extra holiday under a TUPE transfer?

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Question: Can staff claim extra holiday under a TUPE transfer?
 
A group of people transferred to our business under TUPE last month.

During the consultation period, we confirmed that we would honour their pre-booked annual leave for the rest of last year, which we have done. 

But one of the staff has come back to me because she thinks that she is entitled to another batch of leave (five days). Her rationale is that, because she has been moved to another organisation, she is entitled to the leave on top of the pre -agreed holiday.

I think – and hope – that she has genuinely got her wires crossed and suspect that she may have done as no one else has asked this question. But I have never done a TUPE transfer before and know that it is in no way straightforward, so I would be grateful for advice on the situation.
 
David Ludlow, Partner and Head of Employment at Barlow Robbins says:
 
You were right to confirm that you would honour the transferring employees’ pre-booked annual leave assuming that it was accrued untaken holiday. Even if at the date of the transfer the anticipated leave had not yet accrued but had been booked, subject to a change in operational requirements, you were right to allow the transferring staff to take their holidays on those dates.  
 
I agree that the member of staff in question has got her wires crossed. She is only entitled to such leave on top of her pre- booked holiday as has accrued in the holiday year in question. The fact that she has been transferred automatically by operation of law to another organisation does not affect that. Her rights and her former employer’s duties and liabilities transfer with her employment.
 
It is conceivable that if you as the new employer offer all employees more generous holiday that she could take the benefit of that and TUPE would not make such a change to her contract of employment null and void as it would any detrimental change reducing the amount of holiday entitlement.
 
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David Ludlow

Partner And Head of Employment

Read more from David Ludlow
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Thank you.