It is rapidly approaching that time of year when employers become inundated with last minute annual leave requests as they approach the end of their holiday years.
Annual leave entitlements are set out by EU Law, namely the Working Time Directive, which states that employees are entitled to at least 28 days annual leave each year (pro rata for part-time employees).
If you don’t book it you lose it, correct?
Not necessarily. The Court of Justice of the European Union has just ruled that employers have to ‘diligently’ make employees aware of the consequences of not booking their leave and of course the onus is on the employer to show they have been diligent in this.
How do I make sure I can show I have been diligent in reminding staff to take their leave?
Employees are usually informed of their entitlements via their contracts of employment. These have a tendency to languish away in filing cupboards or office drawers, so remind staff periodically that unless leave is booked and taken it will be lost. This can be done in the following ways; this will give you a paper trail to counter any claims:
- Writing to staff throughout the year to remind them they need to book their leave or it will be lost
- Email reminders (not appropriate for those who don’t have regular access to company email system) – use and save delivery and read receipts.
- Reminders in staff meetings. Take meeting minutes, showing who was there and ensure those who are not in attendance are given copies of the minutes.
What if employees don’t take their leave despite reminders?
We can’t force them; all we can do is remind them.
We can just pay them for any outstanding leave can’t we?
No- payments in lieu of STATUTORY annual leave are only permitted when someone leaves their employment and they have leave outstanding which they haven’t taken.
If you give your staff an annual leave entitlement over and above the 28 days statutory amount then holiday buy back schemes can be introduced where employees can exchange that additional leave for payment. E.g., you give staff 30 days per year; employees may buy back a maximum of 2 days only.
What about someone on maternity leave?
Annual leave accrues as normal during maternity leave and should be carried over to the next leave year.
What about employees who are on long term sick leave?
An employee can book annual leave during sickness but you are advised against allowing employees to use their annual leave to cover sick days. This is a breach of the working time directive and also gives you inaccurate sickness absence figures.
What happens if a leave request is refused and then the employee calls in sick?
Get ahead. Turn down a leave request in writing and forewarn the employee that if they do not turn up for work their absence will be unauthorised and if they call in sick this will not be deemed an acceptable reason for their absence (unless it clearly is genuine of course). Disciplinary action may also be taken in these circumstances.
Can we tell employees when to take their leave?
Yes. Many employers close their businesses at certain times of the year, many have a ‘Christmas shut down’. If you need employees to keep some of their leave back for this purpose, make sure it is in their contract and they are reminded of this during the year.
Plan ahead. Keep reminding. Keep records.