The reason we have not been around for a while is not that we have been taking extended holidays. Far from it. We have been working hard helping clients with pandemic related employment problems while trying to squeeze in some breaks away from the virtual coal face which we could just about label a “holiday”. As a result, in common with many others, we now have significant amounts of unused holiday entitlement, just as the bad weather approaches!
1. Can employees carry over their annual leave into the next holiday year?
2. One of my employees has been stockpiling their holidays, can I force them to use their holiday entitlement?
3. Can employers force furloughed employees to take holiday even if the relevant employee would like this leave to be carried over?
4. An employee has booked annual leave but due to last minute flight/ holiday cancellations they no longer want to take the annual leave? Can we force them to utilise this annual leave to avoid stockpiling?
5. An employee has just returned or is shortly due to return from a country where quarantine measures have been introduced and can no longer return to work, what should we do?
6. Can employers cancel annual leave, even if the employee’s holiday was pre-planned and approved in advance?
7. “Unofficial holiday”: what if we discover that an employee who is supposed to be working from home (“WFH”), is somewhere they should not be should not be during working hours?
1. Can employees carry over their annual leave into the next holiday year?
Earlier this year the Working Time Regulations were amended to allow employees to carry over up to four weeks of annual leave to the next two leave years where it is “not reasonably practicable” to take leave because of the effects of coronavirus. This is open to interpretation.
We think it will apply where employees have not taken holiday for reasons directly related to the pandemic such as: their own illness; being in self-isolation or shielding; having to work in front line essential services (e.g. NHS workers); or caring for others affected by the pandemic.
We do not think it applies where an employee has just decided to store up holiday entitlement to take holiday in more favourable circumstances. But the position is arguable where the imposition of new quarantine requirements forced the cancellation of an employee’s pre-planned holiday abroad.
Yes, if sufficient notice is given. Employers can force an employee to take statutory annual leave as long as they provide notice which is at least twice as long as the period of leave they are requesting the employee to take as holiday. In addition, the employee’s employment contract will usually set out the detailed rules for booking holidays and may allow the employer to require employees to take holiday and/or to forfeit unused holiday entitlement if it is not taken in the relevant holiday year.
3. Can employers force furloughed employees to take holiday even if the relevant employee would like this leave to be carried over?
The answer to this question is the same as the one above. Even though the employee is furloughed, holiday pay is payable at 100% of the normal salary notwithstanding the fact that the government subsidy will be at a lower rate.
4. An employee has booked annual leave but due to last minute flight/ holiday cancellations they no longer want to take the annual leave? Can we force them to utilise this annual leave to avoid stockpiling?
It is unlikely that the employment contract will provide that once a holiday has been booked it must be taken (this is not a problem that most employers would have considered before) and there may not be sufficient time to give the statutory notice referred to above. Given the last-minute nature of such cancellations, it is unlikely that employers will be able to give sufficient notice requiring employees to retain this leave.
This is not uncommon due to the frequent changes in the countries on the quarantine list. Clearly this is not a big problem if the employee is able to carry out their role from home, but if not the employer will have no choice but to grant a period of unpaid leave or paid holiday if the employee requests this. Statutory Sick Pay (SSP) is not available to employees forced to quarantine and there is currently no other financial relief available to employees in this situation. An employer who knowingly allows or encourages a self-isolating employee to come into the workplace will commit a criminal offence carrying a fine of between £1,000 and £10,000. Since so many overseas destinations are now affected by the quarantine rules employers may wish to introduce a new policy on overseas travel for holidays and business. Such a policy should include:
- employees’ notification obligations
- expectations for employees working from abroad
- expectations for work and pay during any period of self-isolation
- what happens if employees fail to comply with the policy.
Under the Working Time Regulations employers have the right to cancel pre-booked holiday, even where this has already been approved well in advance, by giving the same number of days’ notice as the length of the holiday. This would clearly not be a popular move and should only be undertaken for good reason. There is also a risk that unreasonably cancelling holiday could be considered a breach of mutual trust and confidence, a term implied into the employment contract. If employees feel this has been breached, they could resign and claim constructive dismissal. In addition, if employees have made travel plans, they may expect compensation from employers for any cancellation or re-scheduling charges incurred as a result of having to cancel the holiday.
7. “Unofficial holiday”: what if we discover that an employee who is supposed to be working from home (“WFH”), is somewhere they should not be should not be during working hours?
Many employers have discovered that their employees are now “WFH” in a variety of locations in the UK and abroad. If the employee is in the UK and working as productively in their new location as they would be in their normal place of residence, it is hard for an employer to object in the current circumstances. But, if an employee is not working productively and meeting the requirements of their role, possibly exacerbated by the temptations of working in a “holiday location”, employers will need to consider whether the circumstances are serious enough to warrant treating the incident as a disciplinary matter under the employer’s normal disciplinary procedures.
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If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak with your usual Fox Williams contact.
Articles and commentary by our legal experts on the impact of Covid-19 are all available here.
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