Employers have the right to require staff to take time off work
The summer holiday season is fast approaching, bringing with it the usual difficulties of trying to accommodate employees’ requests for time off work. But what should employers do when employees decide not to take their annual holiday, even when they do not have the right to carry this over and will therefore lose their holiday entitlement?
Regulations
Under the Working Time Regulations 1998 (WTR) a worker is entitled to 28 days’ annual leave each year, inclusive of bank holidays. Many employers provide for contractual holiday in addition to this statutory entitlement. Some also allow employees to carry over any untaken leave into the next holiday year.
The primary intention of the WTR is to protect the health and safety of workers, and ensuring that workers take a sufficient amount of rest leave is intrinsic to this aim. Case law has established this right to be so important that even when employees are off sick, they still continue to accrue their holiday entitlement.
With this in mind, should employers “force” workers to take their annual leave in order to ensure compliance with the health and safety principles enshrined in the WTR? Alternatively, if an employer does nothing, will it be at risk of breaching its legal obligations to employees?
The starting point is Regulation 15 of the WTR, which allows an employer to:
- require workers to take annual leave; and
- specify the days on which that leave must be taken.
An employer may also refuse a request for leave on days that are not convenient for the business.
Implied terms
However, employers should not exercise these rights capriciously, as to do so could breach the implied contractual terms of trust and confidence. This will, of course, be very fact specific. Take, for example, an employee nearing the end of the holiday year who is unwilling to take annual leave because they have targets to meet that will affect their entitlement to a bonus. In this situation it would arguably be unreasonable to enforce annual leave on the employee - unless their bonus is still guaranteed.
But what if that employee has taken no annual leave all year, and is exhibiting signs of stress and exhaustion? Just to ignore the situation could constitute a breach of the duty to protect their health and safety, yet if the employer insists on the employee taking leave, the risk of losing the bonus might also raise their stress levels. In this situation the employer would certainly need to consider ways of reducing the employee’s stress levels, which could include requiring the employee to take at least a short period of annual leave.
If an employee’s unwillingness to take time off is related to the needs of the business, it is unlikely that the employer would want to enforce a period of annual leave. This might be the case, for example, if the employee’s contribution is essential to a project nearing completion. Recent case law has suggested that in such circumstances, where workers are unable to take annual leave for reasons beyond their control, employers should allow the leave to be carried over to the next holiday year.
Practical Steps
Employers would be well advised to specifically state within employment contracts or staff handbooks that they have the statutory right to require their workforce to take annual leave and may instruct staff to take leave on particular days - for example, to meet business needs or make sure that staff utilise their holiday entitlement within the current holiday year. Having an express contractual provision of this kind to fall back on makes it much easier to justify to employees why they are being required to take annual leave.
It is also sensible to remind employees well before the main holiday season starts that they need to book their leave. As well as ensuring effective holiday planning, by checking, for example, whether employees are all saving leave for the school holidays, this also provides evidence that the employer is mindful of employees’ need to take adequate rest and time off work.
Jayne Flint is an employment solicitor at Shoosmiths LLP
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