What do employers and employees do about holidays during the outbreak?
As the number of COVID-19 cases continues to increase globally, the UK Government has implemented a number of strict measures in an attempt to tackle the spread. These measures include guidance to avoid unnecessary international travel, and globally we’re seeing borders and air routes being closed. As a result, many families are seeing their holiday plans cancelled as we approach the busy Easter break.
In light of this, employers may find themselves facing requests from their employees to cancel periods of annual leave which had previously been booked, if they are forced to stay at home.
Employers are currently facing difficulties which are unprecedented, and many are concerned about the collective efforts which will be required once the restrictions are lifted to ensure the continuity of their business. As such, and particularly when the duration of these restrictions are unclear, employers may wish for employees to insist that annual leave is taken as planned during this time, to avoid all employees having a substantial amount of annual leave to take in the second part of the year.
What does the law say about using holiday entitlement?
The Working Time Regulations 1998, which primarily governs workers’ rights in relation to their holiday entitlement, states that employers can refuse a request for annual leave. Employers have the ability to tell their employees when to take holidays provided they comply with various notice provisions. The Regulations state that in order to insist that an employee takes annual leave at a specific time, the required notice is at least twice as many days, as the amount of holiday due to be taken. So for example, if an employer wishes to insist that an employee takes two days of annual leave, four days’ notice is required.
In refusing an annual leave request, employers must look at the future business needs of the business and ensure that the employee will be able to take annual leave at a later point in the holiday year. A refusal will not be legitimate if this has the effect of preventing the employee from using their full statutory holiday entitlement and as such, employers should refrain from refusing requests if they will be unable to accommodate that employee’s full entitlement within the that annual leave year.
When approving or refusing an annual leave request, employers should ensure that they are acting reasonably and try to be as accommodating as possible in the circumstances. It is good practice to be open and honest with the employee and explain why the decision has been taken. Where the employee suffers a financial loss as a result of the employer’s cancellation, there may be a claim for constructive dismissal.
Specific arrangements are often detailed in staff handbooks, and if such a policy is in place, it should be followed.
What if an employee wants to cancel holidays which has already been booked and authorised?
This is unlikely to be covered in an annual leave policy, because in reality the Working Time Regulations do not permit cancellation. An employee cannot insist on being permitted to cancel holidays. An employer is fully entitled to refuse the request.
Employers should, of course, ensure that they do not exercise their ability to refuse requests capriciously, inconsistently or based on protected characteristics where the same could give rise to a claim.
We anticipate that people on furlough leave should not be entitled to receive a payment in lieu of leave or be entitled to take leave during furlough.
This is a difficult time for both employers and employees and in order to protect health and safety, the needs of the business and the professional relationship, open and honest, early discussions are recommended.
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