It is late July. The great summer exodus is upon us. The “Out of Office” notifications are going on and voicemails are being set to divert. Faced with unpredictable British weather and an ever increasing workload, workers are keen to take some time out. If you are an employer, you may be inundated with holiday requests from your workforce. Although a lot of businesses have a staff structure that facilitates adequate cover during a shortage of staff and/or financial resources to provide cover during the holidays, it is always worth considering employee vacation requests properly and, whilst facilitating staff holidays, ensuring that you have adequate staffing in the office over the holiday period.
Statutory Minimum Holiday Entitlement
Subject to a few limited exceptions, every worker is entitled to a minimum of 28 days (5.6 weeks) annual leave, which can include UK public holidays. If an employee works less than five days a week then this must be calculated proportionally. For example, if they work 3 days a week then this would be 16.8 days a year. It is worth noting, however, that if an employee works more than 5 days a week, they are still only entitled to the 28 days. When dealing with casual workers and/or those who work irregular hours, employers can calculate a worker’s accrual of holiday entitlement as the hours are worked. Employers who give their employees the statutory minimum entitlement to paid leave can do this by multiplying the hours worked by 12.07%. This is because 5.6 weeks is equivalent to 12.07% of hours worked in a year.
Dealing with Requests for Annual Leave
Unless their contract says otherwise, an employee must give notice of holiday in accordance with the Working Time Regulations 1998. Under these Regulations, the notice to be given must be double the number of days to be taken, and it must be given before the first day of annual leave. Unless their employment contract permits otherwise, employees cannot demand specific holiday dates. Employers can therefore refuse to authorise a holiday request if it does not reasonably suit their business needs. Similarly, an employer can only require employees to take holiday on specific dates if it is in their contract, otherwise the employer must give notice in the same way as employees. When considering a request for annual leave, an employer must be certain that it is done fairly and that it does not discriminate against any employee. It is a good idea to have a policy in place for when several employees request holiday at the same time. The least risky approach for an employer may be to grant holiday requests on a “first come, first served” basis, but they could ask for volunteers to work or rely on random selection. Family commitments should not automatically take precedence when deciding whose holiday request is granted, although an employer may take this into account in an attempt to be fair and reasonable.
Holiday Pay, Sickness and Public Holidays
Holiday pay should be paid for the time when annual leave is taken. An employer cannot include an amount for holiday pay in the hourly rate (known as ‘rolled-up holiday pay’). Further, it is unlawful to make a payment in lieu of an employee’s entitlement to annual leave, except on termination of employment when an employer is required to pay the employee’s accrued untaken holiday pay. To the surprise of some employers, workers who become ill just before or during their holidays are entitled to reschedule or reclaim their annual leave at a later date, even if this means taking it in another leave year. There is no statutory right for any worker to take time off on a bank holiday, whether paid or unpaid. Whether an employee can take public holidays off will depend upon their contract of employment.
Contacting Employees during Annual Leave
In the era of portable devices, technology has changed the working day; smartphones are common place and WiFi is pretty much available everywhere. Whilst employers cannot force employees to respond to calls and emails during annual leave, many will. According to a survey of 1,000 people by the jobs website CareerBuilder, one fifth of workers check in with their offices while on holiday and 32% admit to reading and responding to emails during their vacation.
In France, employers are not permitted to send employees work emails outside of normal business hours. This would include time spent on holiday. Whilst this is not the rule in the UK, perhaps a reasonable approach is best. If something really urgent comes up which simply cannot be dealt with without input from the holidaying employee, employers might send them an email or leave them a voicemail to call into the office. Whilst an employee cannot be penalised for not being available whilst on holiday, given that many people do check their emails even during their holiday it may be best to respect an out of office message; whilst an immediate response should not be expected, you might just be surprised.
Too Much of a Good Thing
What if an employee has enjoyed the sangria a little too much and returns to work a few days late? Of course, problems such as delayed or cancelled flights cannot always be avoided. Legally, however, the employee is absent without leave, so they are not entitled to be paid. It is then up to the employer to either authorise the additional absence or to treat it as any other disciplinary matter should they choose to do so.
This article was first published on 24 July 2015 as part of our Employment Law Update series. Register above to receive our updates as soon as they are published, directly to your inbox!
This article is offered for general informational purposes only, and does not constitute legal advice. The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the views or opinions of Solomon Taylor & Shaw.