The Law on Holidays – Myth Buster

28 July, 2016

Orange umbrellaJuly marks the beginning of the school summer holidays. For many employers the summer months pose an annual challenge – how to ensure appropriate staffing levels are maintained at all times. So how exactly can an employer balance the needs of the business against its employees’ expectation of time off during this time? Here are three common (and often misunderstood) questions about employees’ holiday rights answered:

  1. Can I prevent employees taking holiday in their probationary period?

Yes, employers can stipulate in the employment contract that any accrued holiday cannot be taken during a period of probation. However, probationary periods do not affect employees’ statutory rights and holiday is accrued from the first day that they start work. If an employer does choose to prevent those in their probationary period taking leave, it is imperative that they still consider their implied duty to take reasonable care for the health and safety of employees. The level of this duty will differ depending on the nature of the work in question and it is particularly pertinent where a probationary period is extended from, for instance, three to six months. Employers should also ensure that such employees have ample opportunity to take their annual holiday allowance once their probationary period is over.

  1. Can I insist that all employees take holiday at a particular time?

Yes, some employers have a genuine business need that requires periods of annual shutdown, for instance over Christmas or during rainy months if the work is seasonal. Employers are well within their rights to impose a period of forced holiday for all (or some) employees so long as they give at least twice as much notice to the employee(s) as the length of the leave proposed. So, for instance, for a period of one week’s imposed holiday to be taken between Christmas and New Year, 2 weeks’ notice must be given to the employee. If the enforced leave is foreseeable and reoccurring, it is sensible to draft enforced periods of leave into the employment contract so that employees know where they stand from the outset.

  1. How much notice does an employee have to give me to take holiday?

Legislation states that the notice that is given to the employer must be at least twice the length of the planned holiday. In other words, if an employee wants to go away for a week, he or she must inform the employer at least two weeks before the holiday. An employer has the right to refuse this request in a so called ‘counter notice’, which must be served at least as many days before the proposed leave is due to commence as the employer is refusing. To take the example of the week’s holiday above, the counter notice must be served at least a week before this holiday. Employers should ensure that any refusals to grant annual leave are in line with the company’s annual leave policies and as a result of a genuine business need to ensure employees are not disappointed unnecessarily. These default legislative provisions can be amended or disapplied by a “relevant agreement” such as a written employment contract. A non-contractual policy would not constitute a “relevant agreement”. Most employers choose to insert more onerous notice requirements in employees’ contracts of employment with a view to ensuring sufficient cover can be arranged and businesses do not suffer during peak holiday periods.