During these uncertain times, many employees/workers will want to cancel their annual leave as they are unable to go anywhere. This may contradict the commercial needs of an organisation who may wish such annual leave to be taken during this period.
In time of significant increase of commercial activity which businesses may experience post lockdown, employees/workers may choose to take holiday during this period which could contradict the employers need for staff.
In normal circumstances, the relationship between the parties is governed by the contract which may be varied in certain limited circumstances by statute. In the absence of express contractual provisions regulating the relationship between parties, the current statutory position is set out below.
Does an employer have a right to tell employees and workers when to take holiday?
An employer can choose when an employee/worker can take annual leave, however sufficient notice needs to be given. As a general rule, an employer needs to give twice as much notice as the amount of holiday being taken. For example, if an employer wishes the employee/worker to take 7 days holiday, 14 days’ notice needs to be provided. If the employee/worker has already agreed a period of annual leave with an employer (and now wishes to revoke this), they will need to get a written agreement from their employer. However, their employer may not necessarily agree to this. By contrast, if an employee/worker has a holiday booked off at the end of the year (for example 10 days) and business has picked up by then, the employer can choose to revoke this agreed holiday request. However, the employer would need to give a worker 20 days’ notice.
An employer should only consider revoking their agreement to approved annual leave, if it is reasonable in the circumstances. What is “reasonable” is yet to be determined, however it may not be reasonable to withdraw their agreement when an individual has spent substantial amount of money on a holiday which cannot be recoverable, in turn, causing a loss to the worker/employee.
Can an employee or worker carry annual leave over due to the COVID-19 pandemic?
According to recent Government guidance, employees/workers are now legally permitted to carry over up to 4 weeks basic holiday entitlement into the next 2 leave years, where at the end of the year it has been “not reasonably practicable” for them to take this leave “as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society)”.
An employer may not object to this, as it may suit an employer for a staff member to be working (for example, where business has picked up dramatically following the relaxation of lockdown rules). These measures are also aimed at relieving pressure on organisations where many employees/workers have no other option than to take annual leave at once. Business demand could also be a favourable reason for an employee/worker where it is “not reasonable practise” for them to take leave.
Other factors may be where an employee/worker had to self-isolate due to having COVID -19 or that they were “laid off” or on “furlough leave”. There is still little certainty as to how furlough leave and annual leave fits together, but our view is that annual leave will accrue whilst being on furlough leave as an employee is still on an employer’s payroll. By contrast, there has been no confirmation from the Government yet as to whether an employee/worker is permitted to take annual leave during this period.
This article is prepared with the intention of providing general information on the changes in law. Philip Ross Solicitors accept no responsibility for errors it may contain and the coverage of the topic is not comprehensive. You are advised to speak directly to the writer or another partner within this firm within any specific enquiries on the topic addressed.
Zoe is a solicitor working in the litigation team. Her particular expertise includes a range of employment, commercial litigation and personal injury matters. She also has experience in dealing with property disputes.