Managing annual leave can present challenges for businesses at the best of times. Factor in all the disruption and uncertainty of a global pandemic and it can turn into a nightmare. So as an employer, where do you stand and how important is managing annual leave during a pandemic as fairly as possible?
Do employers have to agree to holiday cancellation requests?
Lockdowns have thrown travel plans into disarray and travel restrictions have left some employees unable to go on planned trips. In many cases, that’s led to them asking if they can cancel the annual leave they’d planned to take. Which raises the question: are employers legally obliged to agree to that request to cancel holidays?
Well, the short answer is no, employers don’t have to agree to such a request. Having said that, there could be exceptions if there are any contractual commitments made by the employer but this would be unusual. If you’re in that position, it’s important to check through contracts (and any other applicable agreements you have in place) so you are certain. Clearly, if they have that right contractually, you must comply with it.
If you’re not legally obliged to agree then what should you do?
There are a number of factors to think about here when managing annual leave during a pandemic:
On one hand, you might still want the employee to take off that period of annual leave. You might have booked in employees with time off throughout the year, so for business continuity reasons you ideally need to stick with that plan. The employee in question might already have quite a large annual leave balance and you’re concerned that if it’s not used, it’s storing up a problem for the future. Perhaps it’s operationally a quiet period so would suit the business if they were off as planned. Maybe the employee hasn’t taken much time off, and you’re concerned that it could end up being quite a while until they have that much needed break.
On the other hand, deferring the leave might not present significant problems. In fact, if the holiday was planned to be taken during what is now turning out to be a period of higher demand than expected, it might be helpful. Take the employee’s personal circumstances into account too – a flexible and sympathetic approach might be called for in circumstances such as a planned break being cancelled due to travel restrictions.
There is one other pertinent question to consider. What opportunities will there be to take the leave off again? And that feeds into a wider issue at the moment: thanks to all the uncertainties, many employees are choosing to delay booking leave at all. How should employers manage that situation to avoid problems building up towards the end of the holiday year?
Managing annual leave during a pandemic and avoiding a holiday backlog
With a paid annual leave entitlement of 5.6 weeks (possibly more depending on individual employment contracts), if some employees are delaying booking until later on, this could create significant problems operationally if lots of people want the same time off towards the end of the holiday year.
At the time of writing this blog, there is confusion from the Government regarding summer holidays which includes advice not to book any.
Ordinarily, employers have an obligation to ensure that, as a minimum, employees take off their four weeks’ annual leave derived from the EU’s Working Time Directive. (The remaining 1.6 weeks is provided under the UK’s Working Time Regulations 1998). However, new regulations came into force in March 2020 to accommodate employees who haven’t been able to take holidays because of the pandemic, temporarily enabling up to four weeks of statutory paid leave to be rolled over for up to two leave years.
So businesses do now have more scope to manage the situation to meet both business and employee needs. That, however, doesn’t mean you should push the problem down the road! Holiday balances will still need using at some point, and the more they increase, the more difficult it will become. The emergency legislation is only to be used where it’s genuinely not reasonably practicable for all of an employee’s leave entitlement to be used within the holiday year.
Don’t forget that while we often equate “annual leave” with a “trip away”, it doesn’t have to be. When you are managing annual leave during a pandemic, part of the reason for taking some holiday is simply to have the benefits of some time away from work. So employers should be doing all they can to encourage employees to take time off regularly for their own wellbeing.
How do you ensure an even-handed approach?
Your starting point should always be familiarising yourself with what your policies state and then making sure they are applied in as fair and consistent a way as possible. That could include a ‘first come, first served’ approach. You could specify how many people can be on leave at a time, any periods where leave is not possible for anyone, and any periods – like shutdowns – when holidays must be taken by all. You could perhaps provide guidance about the proportion of holidays employees should aim to have taken by a certain point.
But it’s not just about numbers. It’s about having the right skills available too. This is where it can get even more complicated. Some employees with key skills could find that works against them when it comes to being able to take leave as easily as others perhaps. Having an annual leave request turned down once or twice might be tolerated if it can be accommodated somewhere in the near future. At the moment, in such exceptional circumstances, there may be some very valid reasons why you need certain people in. It’s really important those reasons are explained to the employee so they know it’s a short term issue.
But regular employer refusals to requests to take leave could start to detrimentally affect performance. If it’s becoming a pattern, it might be necessary to review whether you have sufficient levels of a given skill in place. Equally, while employers can also cancel holidays if they need to by giving the same amount of notice as the period of holiday itself, this is never something to be done lightly. Depending on the disruption and disappointment it causes the employee, it well could have a detrimental impact on how they feel about the company. Cancellations should only be done as a last resort and with a full and open conversation explaining the reasons why.
Can you actually force employees to take annual leave?
But what if an employee hasn’t already got holiday booked and you want to encourage them to do so. Can you actually force them?
Again, the legal position is yes. Unless stipulated otherwise in your employment contracts or policies, you can do it by giving notice of the fact that an employee must take holiday. That notice period must be double the length of time of the proposed holiday. So two days leave requires four days’ notice and so on.
However – it’s not an ideal way to handle the situation. There’s nothing wrong with encouraging employees to take time off to ensure they aren’t at risk of burnout or any other detriment to their wellbeing. And you do have obligations to ensure employees are taking leave. But if an employee feels they have no choice about when they’re off, it’s not exactly going to enhance the employer/employee relationship. In fact, it has the potential to do the opposite.
When managing annual leave during a pandemic, by all means, initiate a conversation with an employee if you have sound reasons for needing them to use up some of their holiday. Explain those reasons clearly to them – but keep an open mind to the fact that they may have reasons for not wanting to use it just yet too.
Every case will be different and what’s really important is that you are talking to individuals to understand why those holidays aren’t being taken (they might be struggling to manage a large workload perhaps) and to address any underlying issues before forcing it. There may be factors such as domestic abuse or tension in the relationships at home. It is always infinitely better to have an open conversation where both parties can try to come up with a mutually satisfactory solution.
It is, without doubt, a difficult and emotionally sensitive time at the moment
No matter whether you’re in a situation where an employee wants to take or cancel annual leave, consider all requests carefully and sympathetically. If they really can’t be accommodated for a sound business reason, share that with the employee. It’s all about being as reasonable as possible, balancing individual circumstances and business needs within a sensible framework that encourages consistency where possible, and flexibility and understanding if it genuinely is not.
Do you need some support managing HR issues during this challenging time? Whether you need some ad hoc guidance about managing annual leave or feel you could benefit from more regular HR support on a retained basis we offer a range of highly flexible options to small and medium employers across Leicestershire and the Midlands. Please do get in touch for a chat to find out more.