Ever since the introduction of
the Working Time Regulations in 1998 the issue of annual leave has become an
increasingly difficult one for employers to deal with. Case law from both the
EU and the UK has developed in relation to this issue particularly in relation
to sick leave and annual leave and the following principles have been
established:-
a)
Employees who are off sick can roll over their
holiday entitlement into the next leave year.
b)
Employees can choose to take their holiday
entitlement while they are on sick leave.
c)
Employees who become ill while on holiday can
re-take their annual leave at another time.
d)
An employee who is off sick for the whole of an
annual leave year does not have to specifically request that their annual leave
entitlement is rolled over to the next leave year.
As well as the legal headaches
that employers encounter there are also the practical problems. How do they ensure
that the business is still able to operate properly while their employees are
on leave? What is the fairest leave request system to have in place? What
systems need to be in place to deal with the issues relating to sickness and
holiday leave?
Despite bodies such as the CBI
and Institute of Directors complaining about the difficulties that employers
face when dealing with the issue of annual leave it is unlikely that anything
is going to be done soon by the government to change this position due to the fact
that the law relating to annual leave stems from either EU legislation or
European case law. Employers therefore have to consider what they can do to try
and minimise the effects of these cases. Here are a few suggestions on how to
minimise these effects:-
1) Have a clear Holiday Policy and Procedure
– A clear holiday policy should state how much time off can be taken at one
time. It should also state when requests should be made by and how they will be
dealt with. The policy should also make it clear if there are any shutdown
periods (e.g. Christmas) when leave should be taken.
2) Plan for Holiday Absences – There are
likely to be times of year such as during the school holidays when employees
are more likely to want to take time off. Employers should consider what their
business needs are and plan accordingly, for example; by setting limits on how
many employees within a team or the business as a whole can take time off at
any one time.
3) Consider how to deal with multiple requests
for time off during popular periods such as Christmas - Should it be on a “first
come first served basis” or should there be some form of ballot? This does have
to be considered carefully, I remember
when a firm that I worked at said that requests for time off at Christmas would
be dealt with on a first come, first served basis and this resulted in a queue
of employees outside the HR office on 2 January ready to hand in the leave
requests for Christmas of that year almost 12 months in advance!
4) Have a clear sickness/capability procedure –
As stated above, employees who are off sick do continue to have rights in
respect of annual leave. Dealing with sickness absence in a properly can
prevent employees unnecessarily accruing holiday entitlement. It is also the case
now that in light of recent case law employers should also consider what
procedures they should have in place for employees who became ill while on
holiday and who may want to retake their leave at a later time.
5) If in doubt speak to a solicitor – Well
I would say that wouldn’t I! The reality is that the earlier that you seek
advice about any potential problems the more likely it is that you will avoid costly
litigation in the future saving a lot of money in the long run. (We also have a special offer to either update or draft yourholiday procedure for £75 plus VAT for details of this click here)
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