One thing is for sure, the coronavirus is impacting on people’s holiday plans. But before everyone rushes to cancel their planned annual leave, it would be worth reading the following guidance on employees and employer’s rights in this regard, written by Managing Partner and Head of Commercial & Dispute Resolution, Paul Reader.
Whilst the country is on lockdown, many employees are not wanting to use their holiday entitlement whilst they are housebound. Employers, however, are understandably concerned that if people do not take holiday during this period, they will potentially have a large number of employees taking leave when the lockdown ends and they are trying to rebuild their business.
Under statute, all employees are entitled to 5.6 weeks holiday, inclusive of bank holidays. For full-time employees this equates to 28 days.
To understand what follows it is important to note that this 5.6 week entitlement is made up of four weeks, which are required under European Law, and 1.6 weeks which the UK government has added to employees’ entitlement.
Under normal circumstances, the basic four weeks’ leave must be taken during the leave year that it accrues (there are a few exceptions to this, including those on long term sick, maternity leave, etc). The employer can allow the 1.6 week balance to be carried over into subsequent years, but does not have to allow this. An employer will usually set this out in a contract or have the policy in a staff handbook.
The reason why the four weeks must be taken is because the rules derive from European health and safety concerns for workers; this was seen as the minimum amount of time a worker should take away from work.
Employers cannot pay employees in lieu of their statutory holiday entitlement and they must ensure that employees take at least four weeks' leave in every leave year.
An employee can elect when they want to take their annual leave and must give notice to their employer. The amount of notice is twice as long as the length of leave they are requesting i.e. four days’ notice for two days’ leave.
However, an employer can require the employee to take leave on particular days or not to take leave on particular days. As such, the employer can effectively refuse an employee’s request for holiday by serving a counter-notice. Like the employee, the employer’s notice to an employee to take holiday must be given twice as long in advance as the length of leave they will ask the employee to take. Importantly, an employer’s notice to state that an employee cannot take holiday on particular days only has to be as long as the number of days as the period to which it applies.
In line with the above, if an employee has given notice of a holiday which has been approved by the employer, the employer can still cancel that holiday if they give sufficient notice (same length of time in advance as the actual leave to be taken) and has good reason to do so. If the employer does not have good reason to do so, this could give the employee grounds to make a claim for constructive dismissal. If the employer does not give sufficient notice, they are unable to cancel the leave.
If an employee wishes to cancel the holiday, it can only do so with the employer’s consent as the employer can require the employee to take holiday at any time it requires (subject to adequate notice being given).
At the time of writing, the only amendments that have been made to the above rules is to allow the basic four week EU holiday entitlement to be carried forward, to the two subsequent leave years, if the employee has not taken that leave because of the effects of the coronavirus. In such circumstances, the employer can only prevent a worker taking such carried forward leave where it has good reason to do so.
It would appear that this provision is mainly aimed at key workers, who may be required to work through this period. Employers and employees should note that just because a worker is now working from home, this does not prevent them from taking a holiday. All ‘holiday’ means in this context is a requirement not to carry out work. So, an employee can take a holiday at home.
If an employee is sick just before a pre-notified holiday or whilst on holiday, they can require the employer to regard the day(s) as sick leave rather than holiday. If an employer runs a statutory sick pay scheme (SSP), this would mean that the employee would only be entitled to SSP on these days.
At the moment it is not clear whether furloughed employees will accrue leave or are entitled to take leave so further advice is expected from government on this.
As is evident from the above, the issue of holiday rights during the current crisis raises many issues. Employers may want to think as follows:
Employees will need to be aware that:
It is extremely important that both employer and employee discuss matters when such issues arise, in order to try and ensure that the needs of both parties are met.
If you wish to speak to Managing Partner, Paul Reader, or another member of our Commercial & Dispute Resolution team then please telephone 01892 526344 or email enquiries@berryandlamberts.co.uk.
For further information on all our Commercial & Dispute Resolution services, please click here.
Whilst our offices are closed to the public during the coronavirus pandemic, we are offering a telephone appointment service which gives you one hour of time with a solicitor for £100 + VAT. Please get in touch if you feel this type of appointment would be beneficial.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.
