Annual holidays: employer’s rights v worker’s rights

Under the Working Time Regulations 1998 reg 15(1) a worker has the right to elect when he/she wants holidays by giving employer notice (unless the employment contract says otherwise, the notice given must be twice as long before the planned leave, as the length of planned annual leave itself).

However, under the same Reg15(1) this worker’s right is ‘subject’ to the employer’s right to tell the worker when the holidays must be taken. The employer’s right therefore unfortunately trumps the worker’s right.

Not only does the employer’s rights trump those of the worker here, there is unfortunately no restriction of “reasonableness” or other such control in Reg 15 as to the number or timing of holidays which the employer can force the worker to take during the holiday year.

Are then any legal protections or tactics a worker can use to try to control or influence the employer as regards the timings of holidays in any holiday year?

• One tactic for the worker is to request holidays they want well in advance during the early months of the holiday year to obtain agreement to these before the employer has worked out their own annual plan/requirements. Holiday requests may often then potentially be approved on the worker’s terms.
• The right of the employer to choose when the worker takes his/her holiday can validly be restricted by the individual worker’s employment contract itself, or by a collective agreement or any other proper agreement.

It’s always important therefore check your employment contract and staff booklet etc, as these may restrict the employer’s right to choose your holiday dates.

[NB: this can work both ways. The contract or another agreement can equally restrict the worker’s rights to choose holiday dates. and the period of advance notice needed for these.]

• Remember also that if the employer does not give the required notice or if the employer in fact does not have the right to impose a certain holiday leave requirement (under your employment contract or in another agreement), then the employer’s notice is ineffective and can be refused by the worker.
• Workers who are furloughed (under the Govt furlough scheme operating between 20^th March and 31^st October this year) can be made to take holidays whilst on furlough. This is attractive to many employers, as effectively the Govt will be paying 80% of the holiday pay rather than the employer. However, recent Covid-19-related guidance issued by the Govt on holidays and furloughed staff tries to control employers to some extent by asking employers to consider if imposing certain holidays on furloughed staff is really giving them full proper holidays on a lockdown situation. In addition, the European court has said many times in many holiday leave/pay case judgments in recent years that it is fundamental for workers to be given proper amounts of annual leave each year, as proper annual rest (for a legal minimum of 28days each year) is seen as vital for workers’ overall health and wellbeing.

It would therefore potentially be seen as unlawful for employers to impose very unreasonable/unfair holiday date requirements on furloughed workers. For example, an employer telling workers on furlough that they have to take all of their years’ annual leave in say May or June whilst furloughed and under an ongoing lockdown would be potentially unlawful and unenforceable on workers, as it would be denying them any unfettered non-lockdown holidays for the whole of 2020, and denying them any normal

Employers would counter-argue that the need to enforce furloughed workers to take substantial holidays is essential (and reasonable) from a business efficiency/stability/profitability perspective, eg to avoid a rush of holiday requests in the second half of 2020 when businesses are trying to get back on their feet. On the other hand April 2020 Covid-19-related Govt Regulations allow workers to carry over holidays (untaken because of the virus pandemic) into the following two annual leave years, to be used later. Employers could therefore refuse holiday requests for this year and spread the extra holidays over the next two years to minimise any issue.

It would be a question of the appropriate overall balance between the worker’s rights and the legitimate needs of the business, but employers need to bear these issues in mind.

• Employers’ discriminatory enforced annual leave periods would be unlawful. These could be:-
• employers’ attempts to enforce annual leave on certain furloughed workers in breach of the Equality Act 2010 discriminatory areas (eg those targetting furloughed women instead of furloughed men, the disabled instead of others and so on.)
• There could also be arguments made that an employer ordering furloughed staff to take substantial holidays during their furlough discriminated against furloughed workers versus non-furloughed workers, if these non-furloughed workers were not being made to take the same amount of holidays during the same lockdown period. This would be not discriminatory conduct breaching the Equality Act as such, but instead could be seen as conduct breaching the implied term of trust and confidence between employer/worker.
• Lastly, remember that it is a clear established legal principle that any worker who is on sickleave (self-certified or by GP fitnote) cannot simultaneously take holiday leave. It follows then that a worker on sickleave cannot be forced by the employer to take any annual leave whilst off work sick. It also follows that this restriction applies to furloughed workers and non-furloughed workers alike.

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In summary, while there is no express legal restriction of ‘reasonableness’ or such like on the right of employers to decide when workers must take their holiday leave, there are a number of legal and practical controls on this right.

For further information on how our Employment Solicitors can help you, please contact Gordon Bell or David Hutchison on 01413336750.