School is almost out and the summer holiday season is almost upon us. With holiday companies offering good deals for those able to take their breaks at short notice, some employers can find themselves short-staffed if expectations are not managed. What is the position if an employee turns round to their employer and says they have booked and paid for a holiday, had assumed it would be ‘no problem’ and must take it, even if it causes capacity problems back in the workplace?
The People Bulletin sounded out some of our employment law experts for their views and the bottom line is that there is no substitute for a practical annual leave policy that everyone can easily understand. David Ogilvy, partner of Turcan Connell explains:
‘Take the example of an employee deciding to take advantage of a ‘credit crunch’ holiday offer without his employer’s permission – it would be up to the employer to decide what weight to attach to his excuse that in recessionary times he simply couldn't give the notice normally required because the bargain holiday which enticed him to breach his contractual obligations became available at such short notice. Unfortunately for our bargain-grabbing employee, in many cases that explanation would have little effect. An employer would, however, always need to be able to show that he acted ‘reasonably’ in coming to his decision. In many cases like this, an employer would be acting reasonably if he came to the conclusion that trust and confidence had broken down as a result of the employee’s actions.’
Lucy McLynn, author of Working Time and Holidays[1] and partner at Bates Wells and Braithwaite reminds us of the rights of the employer and employee in this situation under WTR 1998:
‘Workers need to ensure that they have requested annual leave and had it authorised in accordance with their employer's annual leave policy before booking a holiday. An employer is perfectly entitled to refuse a request to take annual leave, and may well do so if it is made on shorter notice than the policy requires. Under Reg 15 of the Working Time Regulations 1998, an employer has the absolute right to veto any request by a worker to take holiday, provided that it does so as far in advance as the length of holiday which the worker is seeking to take (for example one week in advance of the start of one week's holiday, a fortnight in advance of the start of a fortnight's holiday). If a worker takes annual leave when it has not been approved, then he is on unauthorised absence and leaves himself open to disciplinary action which could amount to summary dismissal for gross misconduct.’
Deborah Nathan of Russell Cooke LLP reiterates the importance of having clear procedures in place to ensure that employees do not have unrealistic expectations when they make last minute requests. ‘Employers should be aware that unless they have substituted their own procedure for giving notice of holidays in the correct way, an employee may simply give notice under the Working Time Regulations, which only requires notice of holiday to be twice as long as the period in question. The EAT case of Industrial and Commercial Maintenance Ltd v Briffa [2008] All ER D 105[2] highlights that employers can exclude the statutory notice scheme for giving notice. In this case, the employee’s terms and conditions had been consensually varied to provide that where an employee was not required to work during his or her notice period, this time would be treated as holiday. As a result, the employee’s claim for paid holiday was rejected; WTR allow employers to impose their own procedures and the contractual provision was clear and unambiguous.’
Last but not least, Daryl Cowan of DC Employment shared a client situation he had to deal with earlier in the year. ‘An employer client had an employee who had booked a last -minute deal and had paid a non-refundable deposit (or at least claimed she had). The complicating factor was that the employee cited the case of another employee who had done the same thing and had been allowed to go on holiday without any sanction six months previously. It is clearly better for employers not to set precedents like that but in this case it did not prevent the employer from relying on its holiday policy which required employees to obtain the company’s permission for leave before booking holidays. In addition, the company protected itself by differentiating the employee’s case from the one where the employee was allowed to take the leave by explaining that sufficient cover was required in the office during what was one of its busy periods.’
So employees should remember that the last minute bargain is not quite such a bargain if they are not able to actually take the holiday – or worse still – face disciplinary action if they do take it without the necessary permissions.
[1] See Lucy McLynn’s article ‘Give us a break!’ in The People Bulletin, 17 March 2010.
[2] www.bailii.org/uk/cases/UKEAT/2008/0215_08_2207.html