As the sun shines and the holiday season is upon us, employers are likely to face a number of tricky questions from workers regarding their holiday rights.
Subject to what is agreed in the employment contract and handbook, a worker's basic holiday rights are governed by the Working Time Regulations 1998 ("WTR"). Under the WTR, employees are entitled to a minimum of 5.6 weeks holiday per year, which equates to 28 days for someone working 5 days per week. The WTR, assisted by case law also govern how those holidays are taken. We examine a few common scenarios that you may encounter.
Can I prevent an employee taking holiday during their probationary period?
In short, yes, but that does not prevent them accruing holiday. Under the WTR, employees accrue holiday from their first day of employment at the rate of 1/12th of a full year's entitlement at the beginning of each month, i.e. if an employee has 28 days holiday a year, they will accrue 2.33 days of holiday each month that they work. Employers therefore have the power to at least limit holiday taken during the first year of employment to that which has been accrued. This would prevent an individual taking, say, 2 weeks holiday early in their employment before they have accrued it. Employees could even take matters a step further and delay any employee holiday request during probation by utilising powers under the WTR or the contract, provided the holiday could be taken at a later date.
My employee has asked to take three weeks holiday next month. Am I obliged to say yes?
Under the WTR, employees are required to give notice to their employers when they want to take leave of at least twice the amount of leave that has been requested. In this scenario, if the employee wanted to take 15 days (3 weeks) holiday, they would be obliged to provide at least 30 calendar days' notice.
Even if the employee provided the correct notice, the employer could still refuse that request by serving a counter-notice of at least as many calendar days before the date on which the leave is due to start. In this scenario, you would need to give the employee at least 15 calendar days' notice before the date on which the leave is due to start. This does not allow you to block all holiday requests; simply defer them to a time that is more convenient to the business.
It is important to remember that these notification requirements can be significantly tightened and lengthened in a robust holiday policy where it is possible to limit the amount of holiday that can be taken at any one time and when in the year that holiday may be taken. Similarly, if you wanted to adopt a less stringent policy, you are free to do so.
We need to close the office over summer to allow for renovation works. Can I ask my employees to take holiday over this period?
Yes, you can ask your employees to take holiday over this period as long as you give them the required notice. Under the WTR, an employer can give notice ordering a worker to take statutory holiday on specified dates, and this notice must be at least twice the length of the period of leave that the employees are required to take i.e. if the employees are required to take 2 weeks leave you must give at least 4 weeks' notice.
If you have regular shutdown periods, you should consider adding wording to the contract that requires employees to take holiday at times designated by the employer.
I have just received a call from an employee who is on holiday in Spain. They are feeling sick and therefore want to convert the remainder of their holiday to sick leave. What should I do?
This is a difficult area that has generated a considerable amount of case law. The current law is leaning towards the decision that if a worker becomes sick on annual leave, they will be able to switch to sick leave and take the holiday at a later date. It is therefore important that you have robust sickness reporting procedures in place, including a requirement that a doctor's note is provided to evidence the period of sickness whilst away. An employees' failure to comply with such procedures could invalidate a request to convert the type of leave or to qualify for sickness payments.
It is important to note that the answers provided above give only a brief outline of potential issues and many of the scenarios will be complex and fact sensitive. What is important is that you put in place a robust holiday policy.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
