Can you insist employees’ take annual leave?

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Annual leave is a statutory right in the UK.

The statutory annual leave entitlement in the UK for someone who works 5 days a week is 28 days (or 5.6 weeks). Employers may decide to give their staff a higher amount of leave than this but they cannot give fewer than the statutory minimum.

Annual leave accrues from the first day of employment and the amount of annual leave an employee is entitled to must be specified in their contract of employment (incidentally, contracts of employment must now also be issued to employees from the first day of their employment).

Usually, employers are faced with the problem of too many employees wanting to request leave at the same time, leaving their employment owing annual leave to their employer and so on. The pandemic however has thrown up another conundrum, employees accruing excessive amounts of leave and seemingly storing it up for that rainy day once international travel is back up and running so they can flee the country on that long-awaited holiday.

All of us are looking forward to those days coming back, as is the travel industry; what can you do as an employer if you are concerned about this ever-growing pot of annual leave?

The first thing to bear in mind is that whilst the right to annual leave is a statutory one, it is subject to the employer’s approval.

Many employers will have had to turn down annual leave, particularly during school holidays, because the needs of the business cannot accommodate so many people on leave at any one time. The good news is, just because there is a pandemic, the rules around the booking and authorising of annual leave have not changed.

Let’s address some pandemic related frequently asked annual leave questions first of all.

What support is there for businesses managing excessive amounts of annual leave which has built up during the pandemic?

As a result of the pandemic, the Working Time Regulations were amended last year.

Under the Working Time (Coronavirus) (Amendment) Regulations 2020, where it is not ‘reasonably practicable’ for an employee to take some, or all, of the annual leave to which they are entitled due to the coronavirus, they can carry over up to 4 weeks leave into the next 2 leave years.

It’s important however, that employees are not unreasonably refused their right to book and take annual leave and any arrangements for the carry-over of leave must be discussed and properly communicated with staff.

We do not permit the carry-over of annual leave. Staff have been off for most of the year anyway. Does this still apply?  

So even though staff may have been away from work, furlough is not classed as ‘rest’ under the Working Time Regulations. In the same way that annual leave accrues during long-term sickness and maternity leave, it will accrue during furlough.

If, however your business was able to continue to operate throughout the pandemic without using furlough (or you only used furlough for a limited period of time), you may be able to argue that your staff have had ample opportunity to book their leave. Afterall, its not your fault that travel has been restricted and staff haven’t been able to go away on holiday.

If you are considering refusing to allow your staff to carry over leave, please take advice from our experts first to avoid any costly legal challenges.

Staff are due back to work soon and I want them to start taking their leave. They have told me that I can’t insist when leave is taken. Is this true?

No. You as the employer can insist that employees take annual leave and you can insist when they take it.

This should only be the case in exceptional circumstances, such as a pandemic.

Consider for a moment those businesses that have a close down around the Christmas period, they often stipulate in the contracts of their staff that they should keep back a portion of their leave entitlement to cover that closure, so it is legally acceptable.

How should I go about this?

Be as reasonable as possible. Speak to the staff, if you are intending to carry over leave across the next two leave years, make sure they are aware and that it is confirmed in writing.

If you want people to start booking a portion of their leave by a certain date, then give them notice to do so as early as you can, again back this up in writing. Try to maintain the ‘voluntary’ aspect of this as long as you can.

If you have isolated incidents of staff who are not showing willing, then you can address this on an individual basis. Ultimately if you must place them on annual leave then you can do so but you must ensure if that you give them twice the amount of notice for the amount of leave you want them to take.

For example, if you want them to take two weeks off, then four weeks’ notice must be given. It is important to follow this up in writing and of course our experts can assist you with any paperwork you need as well as managing any difficulties surrounding this.

Please try to keep this as a last resort though. This practice should not replace usual proactive steps that an employer should be taking such as:

  • reminding staff they should be booking leave throughout the year,
  • giving them notice that if booking leave is left to the last minute then their request may not be agreed
  • they should not book travel without having their leave approved first!

And finally…..Seek advice from our experts! Please quote your Client Account Number on all correspondence and telephone calls. 24-hour client advice line: 0800 151 2935.