Although the date for the resumption of foreign travel remains uncertain, many workers will be planning to take annual leave in the summer, or later in the year, when more coronavirus restrictions will have been lifted. If annual leave requests are not managed properly, this could lead to problems with staffing levels at times. So what options are there for employers?
If we receive multiple holiday requests for the same period, can we refuse some of them?
In terms of the Working Time Regulations, you can refuse a request for annual leave, provided you give as much notice as the amount of leave requested (so two weeks' notice if two weeks' leave is requested). However, many contracts of employment disapply this rule – for example, the contract might state that an employee must comply with your holiday procedure, and that you can refuse requests – check your contracts and any annual leave policy.
Wherever possible apply neutral criteria when prioritising competing holiday requests e.g. first come first served; or by rotation (so if someone has been denied their request on a previous occasion, they then get priority the next time). If you have an annual leave policy, it could include details of how you will manage competing requests.
Strictly speaking, someone with a protected characteristic does not get automatic preference over someone without - but bear in mind the additional discrimination risk that could arise if you refuse a request to someone with protected rights (e.g. a female employee with primary childcare responsibilities who requests time off over the school holidays).
Can we insist that a worker takes annual leave at a particular time?
In terms of the Working Time Regulations, you can give notice to a worker that they must take annual leave on specified dates. The notice must be at least twice the length of the period of leave that the worker is being ordered to take. So, if you want to insist on a worker taking two weeks' leave, you must give at least four weeks' notice. However, as above, check your contracts of employment to see whether these rules have been disapplied.
Rather than issuing formal notice requiring workers to take holidays, there is also the option of asking workers to take a certain number of days holiday, or percentage of their holiday entitlement, by a specified date.
Can we cancel a worker's pre-booked holiday dates?
Yes - but you will need to:
- give notice in the same way as discussed above in relation to refusing holidays;
- have a good reason for the cancellation, and act reasonably (including considering any financial loss to the employee if they are unable to take the holiday) - or risk breaching the duty of trust and confidence; and
- bear in mind the risk to employee relations with this approach.
Can workers carry over holidays they haven't been able to take?
Workers are entitled to 5.6 weeks' statutory annual leave each year: normally, four of these weeks must be taken in the relevant leave year (other than in some cases involving sickness or maternity leave), and the remaining 1.6 weeks can only be carried over if the worker's contract allows for this. Whether workers can carry over any additional contractual holiday entitlement over and above this, will depend on the terms of the contract.
However, the Working Time Regulations have been amended to entitle workers to carry over up to four weeks of their 5.6 week statutory holiday entitlement into the next two holiday years immediately following the holiday year in which it was due if it was not 'reasonably practicable' for them to take the holiday because of 'the effects of coronavirus'. Read more about what is meant about the 'effects of coronavirus' in this guidance and our earlier blog.
The amendments also state that an employer must have a 'good reason' for not allowing a worker to take any carried over leave on certain days. It is not clear from the legislation what will amount to a 'good reason'.
Many workers are likely to want to carry over some of their holiday entitlement. However, whilst the amended Regulations mean that workers are entitled to carry forward these holidays if they want to do so, they do not give you the right to insist on it.
In practice
Many workers will have been working remotely now for a long period, juggling work and family life. From a health and safety and mental wellbeing perspective, you should be encouraging staff to take annual leave at regular intervals throughout the year. That said, it is very likely that you will receive a high number of holiday requests over the coming months, and so it is important to think ahead and take appropriate steps to help manage the impact of this on the business.
Contact a member of the employment and immigration team for more information. Workbox by Brodies users will find the Coronavirus and Holidays pages useful: to request a free trial or demo of Workbox, please click here.
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Practice Development Lawyer
