Legal Q&A: Annual leave

Managing annual leave entitlement can raise a number of questions for employers, particularly as they try to deal fairly with employees’ holiday requests over the summer months.

How much notice to take holiday is required from an employee?

An employee must give notice in accordance with reg.15(4)(a) of the Working Time Regulations 1998. The notice to be given must be double the number of days to be taken, and it must be given before the first day of annual leave; eg if the annual leave in question is for a period of five days the notice must be given at least 10 days before the first day of the requested leave.

The Working Time Regulations do not stipulate that notice must be provided in writing.

However, reg.15(5) provides that the notice provisions can be varied or excluded by a relevant agreement (this will usually be by provisions contained in a contract of employment).

Can an employer refuse a holiday request?

Subject to what is contained in the contract of employment an employer may reject an employee’s holiday request. Regulation 15(4)(b) of the Working Time Regulations stipulates that an employer can refuse a holiday request on appropriate notice, such notice being the number of days leave to be taken.

For example, to refuse a request for two weeks’ annual leave, an employer would need to inform the employee of this refusal prior to two weeks ahead of the start date of the proposed leave. While there is no obligation in the Regulations for an employer to state the reason for the refusal, it is good practice to explain why leave cannot be granted, for example because too many employees have requested leave at the same time.

Can an employer choose when an employee takes his or her holiday?

Ideally, this should be dealt with in the contract of employment, eg if the employer has a standard closure for a week over Christmas. In the absence of any such provision, reg.15(2)(a) of the Working Time Regulations explains that an employer may serve notice to require the worker to take leave on particular days.

Any such notice must adhere to the same time period requirements as apply to an employee giving notice, ie twice the length of the leave, and be clear as to the days to be taken.

If two or more employees request their holidays over the same period, should certain employees be prioritised over others?

There are no statutory rules detailing the order in which employees should be prioritised. However, many businesses observe established but unwritten “leave etiquette”, or may have a written policy on this. Some employers choose to grant holiday on a “first come, first served” basis.

Others may give preferential treatment to employees who have childcare responsibilities or in accordance with employees’ seniority. An employer that gives such preferential treatment to certain employees, or to certain groupings of employees, must be wary of the potential for this to lead to discrimination claims.

The least risky approach for an employer may be to keep it simple and grant holiday requests on a “first come, first served” basis.

What protection is there for an employer who approves holiday and the employee cancels this at the last minute?

Last-minute cancellations can be very frustrating for employers, particularly when alternative arrangements have been made to cover the work in the employee’s absence. There is no specific legislation that deals with this point.

To avoid any confusion, a provision could be included in the employment contract setting out what happens if an employee cancels his or her holiday at short notice, for example by obliging the employee to take those booked days if they have not provided a certain amount of notice.

Can an employee work elsewhere during his or her annual leave?

Unless an employee’s written contract prohibits him or her from working elsewhere during his or her employment, the employee will technically be free to work for another employer during any period of annual leave, subject of course to the implied duties of fidelity and good faith.

That said, employers can (and often do) make it a condition of the employment contract that the employee must ask for prior permission before undertaking work for any other entity during the course of his or her employment. This is always a sensible provision to include in a contract of employment.

Andrea London, partner, and Richard Freedman, trainee solicitor, Rosenblatt Solicitors