How to deal with employees who refuse to take annual leave

2015-06-29 Philip posted:

Employers have the right to require staff to take time off work

The summer holiday season is upon us, bringing with it the usual difficulties for employers of trying to accommodate requests for time off work. But what should employers do when employees decide not to take their annual holiday and risk losing their holiday entitlement?

Under the Working Time Regulations 1998 (WTR) a full-time employee is entitled to a minimum of four week’s holiday in addition to the usual public. Many employers provide for a more generous entitlement. Some also allow employees to carry over any untaken leave into the next holiday year.

The intention of the WTR is to protect the health and safety of employees by ensuring they take a sufficient amount of rest. Case law has established this right to be so important that even when employees are off sick or on maternity/parental/adoption leave, they still continue to accrue their holiday entitlement.

With this in mind, should employers “force” workers to take their annual leave? Take, for example, an employee nearing the end of the holiday year who is unwilling to take annual leave because they have targets to meet that will affect their entitlement to a bonus. In this situation it would arguably be unreasonable to enforce annual leave on the employee - unless their bonus is still guaranteed. Will the employer be at risk of breaching its legal obligations to employees if it does nothing? Quite probably, yes.

An employer can insist on the employee taking leave even if this risks the employee losing entitlement to a bonus or commission payment though an employee might be forgiven for thinking it was unreasonable and disingenuous of the employer if this was their motivation.

Employers would be well advised to state in employment contracts and staff handbooks that they have the right to require employees take annual leave and may instruct staff to take it on particular days - for example, to meet business needs or make sure that staff utilise their holiday entitlement within the current holiday year. Having an express contractual provision of this kind to fall back on makes it much easier to justify to employees why they are being required to take annual leave.

It is also sensible to remind employees well before the main holiday season starts that they need to book their leave. As well as ensuring effective holiday planning this also provides evidence that you have been mindful of employees’ need to take adequate rest and time off from work.

If you have an issue with holiday pay or working time, email us here or telephone us on 01225 632240

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