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Partner and Head of Family Law, Rugby
In my earlier blog we looked at holiday entitlement, but that’s only the first potential headache for HR Managers! Next up, we deal with the employee taking time off – or believe it or not, not taking any holiday at all.
As a general principle (subject to employers specific rules) employees are free to request holiday anytime they choose, but (and this is something that many employees are not aware of) an employer can refuse and suggest alternative dates. The law sets out provisions by which either the employer or the employee can give notice of holiday.
If an employee wishes to take holiday, the notice must be at least twice the period of leave that they are requesting, for example if an employee wants to take one day’s holiday, they have to give at least two days’ notice. An employer may then refuse a holiday request by serving a counter notice. This must be given at least as many calendar days before the holiday is due to start as the number of days the employer is refusing. These provisions can be varied or excluded in an employment contract, so make sure that requests for holiday fit in with your business needs.
Something else many employees (and some employers) are not aware of is that employers may give notice ordering an employee to take holiday on specified dates. Such notice must be at least twice the length of the period that the worker is being ordered to take. This often happens during Christmas periods or ‘factory fortnight’. This can be a very useful tool for dealing with those employees who do not like taking holiday (it really does happen!), and end the leave year with lots of holiday left to take, which then poses an issue as to what to do with their remaining holiday days.
The law says that employees are not entitled to carry over or receive a payment in lieu of four weeks’ accrued leave (as provided for by European regulations), which can only occur on termination of employment. Remember, the UK additional entitlement of 1.6 weeks, along with any contractual benefits, is not subject to those rules, and you can choose what to do with it to suit your business needs.
So what happens when everyone requests the same week off work? You survived the summer holiday season but October half-term is only eight weeks away, and let’s not forget the usual battle over who gets Christmas off. All employers encounter the same problems (us included), so how do you deal with it?
If you accept all requests you will end up with a skeleton crew (at best). If you refuse requests, you are likely to end up with either; disgruntled employees who have wasted hundreds of pounds; a sudden flu epidemic amongst your workforce; or worse still, threats of sex discrimination! In any event, it is going to have an affect on productivity.
If you do not already have a policy in place, then you need to take action now and think carefully about how to respond to holiday requests in as fair and consistent a way as possible, ensuring in particular that any decisions do not fall foul of discrimination legislation or employees’ holiday entitlements.
You might consider operating a traditional ‘first-come, first-served’ approach, or requiring all holiday requests between set dates to be lodged on or before a certain date, to enable you to assess all requests together, taking into consideration the needs of your business. In addition, you could consider limiting the number of days that any one employee is permitted to take during busy holiday periods.
Whatever approach you adopt, you need to ensure that it is clearly communicated to staff to avoid allegations of unfairness of arbitrary application.
Next time, I look at recent changes in the calculation of holiday pay and why you may end up with some queries landing on your desk.
To listen to our next webinar on HR holiday headaches, register here.