Managing Annual Leave Requests
With summer coming along soon, annual leave requests may be more frequent however when does an employee’s time-off become an issue? How should managers handle the discussion? Here’s what you need to know and do.
Firstly there are 3 things to consider.
- Communication: Establish well-defined policies about annual leave and make sure everyone in your organisation knows them. Clear policies lead to easier decisions when unusual requests arise.
- Respect: If annual leave policies don’t cover a particular issue, respect your employees by striving to be fair and compassionate in making a decision and presenting it to them.
- Clarity: Do your employees take it for granted that their annual leave requests will be approved? Make sure their expectations are based on actual policies, not informal beliefs based on past behaviour. Again, communication is essential.
There are also some times when you may need to speak with your employees regarding their requests. Consider talking directly with them under any of these circumstances:
- When the request contradicts company policy: You may need to make occasional exceptions to your annual leave policies, but strive to be consistent in how you enforce the rules. Document the reasons behind your decision when exceptions do arise so you can easily resolve similar situations in the future.
- When you believe the employee’s absence will have a negative impact: What if a worker wants to go on holiday during a crucial time for your organisation? Instead of simply denying the request, explain the difficulties their absence might cause. Together, you may be able to find a better time for their request.
- When an employee wants to much time off at once: How long is too long? That depends on your needs and the nature of the employee’s request. It’s one thing if they want to sail around the world, and another if they’re requesting time to care for a sick relative. As you discuss their request, remember that a lengthy absence can burden co-workers who have to pick up the work.
- When an annual leave request comes with too little notice: Sick days and emergencies can happen to anyone, but an employee who takes frequent last-minute personal days and trips can cripple productivity and impact team morale. A discussion about the effects their behaviour is having on the team can help the employee understand why they need to plan further in advance.
- When annual leave requests aren’t happening enough: Problematic annual leave requests are easy to spot, but there’s an annual leave issue that’s often over looked - many employees don’t take as much time off as they should. Overworking can take a toll on an employees health and happiness, as well as their job performance. Make a habit of looking at annual leave allowances, and talk to your team about the benefits of taking leave to help foster a culture where time off is encouraged and over-working and burnout is discouraged.
You should ask yourself some questions as well to establish annual leave rules that meet both your business needs and the needs of your employees.
- How far in advance must employees request time off?
- Do you have a formal system for requesting time off?
- Are there times when employees can’t take time off?
- How do you handle overlapping requests from different employees?
- How do you keep track of who has taken time off and how much?
You can find more information on annual leave requests here.
Holiday Pay Calculations: Consultation Period
The government has issued a consultation containing proposals for legislative reform to address the challenges faced by many employers in response to the Supreme Court’s decision in Harpur Trust v Brazel last year.
Last year the Supreme Court ruled that all workers (including part-year and other irregular-hours workers) are entitled to 5.6 weeks’ paid leave per year, irrespective of the number of weeks worked, and that their holiday pay should be calculated in line with the relevant statutory provisions. Further details can be found here.
The key proposal in the consultation document is that the statutory annual leave entitlement for part-year and casual workers should be calculated in two steps:
- Calculate the total hours a worker has worked in the previous 52-week reference period, including any weeks without work
- Multiply the total hours worked by 12.07% to determine the worker’s total annual statutory holiday entitlement in hours
At the beginning of a leave year, an employer will be required to look over the total hours worked in the previous 52 weeks (including non-working weeks) and use that figure to determine the worker’s annual leave entitlement for that leave year.
How does this work for the first year of work or casual workers on short-term assignments? Employers will be required to work out a worker’s statutory holiday entitlement, in hours, on a monthly basis by reference to the number of hours worked in the previous month multiplied by 12.07%.
Agency workers are also covered by this consultation. When an agency worker is on assignment, their holiday entitlement should be calculated by 12.07% of the hours worked over the previous month. If an agency worker is not on an assignment, they will not accrue holiday.
The consultation document also proposes a new means of calculating how much of their holiday entitlement a worker uses when they take one day off. The suggestion is that employers calculate a flat average working day based on the average number of hours worked during the relevant reference period.
The consultation closes on 9 March 2023. Due to a short consultation period, it suggests that the government is keen to crack on with its proposals and that we can expect implementing legislation sooner rather than later if the proposals gain the backing of affected employers.
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Case Law: Harper Trust v Brazel
To Pay or Not to Pay – The Jubilee Bank Holiday
On Friday 3 June 2022, there will be an extra Bank Holiday granted to celebrate the Queen’s Platinum Jubilee. The usual May Bank Holiday has been moved forward to Thursday 2 June 2022 resulting in a four-day weekend for those able to take time off.
What are your employees’ rights when an additional Bank Holiday is announced?
The general rule is that employees do not have an automatic right to a day off work when this or any other Bank Holiday is announced. Employers will need to review their contract of employment to determine if an employee is entitled to a day off work and to be paid for it.
Some contracts of employment will state that the employee is entitled to a certain number of days of annual leave, “plus bank holidays”. In this case, they will be entitled to the additional Bank Holiday off work.
Other contracts of employment state that the employee is entitled to a set number of days of annual leave, but do not mention Bank Holidays. In this scenario, the employee will not be automatically entitled to the additional Bank Holiday off work.
Some employment contracts provide the employee with a set number of days of annual leave “plus eight Bank Holidays”. Again, this will mean that the employee is not automatically entitled to the additional Bank Holiday off work.
If the contract states “you are entitled to XX days holidays plus the usual bank holidays in England and Wales” again this would not give the worker an automatic right to the additional Bank Holiday because the addition Jubilee day is not a “usual” bank holiday
Employers will need to review their employees’ contracts of employment to see whether all of them, some of them, or none of them are entitled to take the Platinum Jubilee Bank Holiday off of work.
Where employees do not have a contractual right to the additional Bank Holiday, employers will need to consider if they wish to grant the day’s leave as a gesture of goodwill, if they will require employees to attend work or if they will give employees a day off in lieu of the Bank Holiday due to staffing requirements.
Whilst it is important to comply with the letter of the contract of employment or work, the additional Bank Holiday can also be a morale booster for staff. You may consider granting employees an additional day’s holiday for the Jubilee as an act of goodwill, stressing of course the reason for it being allowed as a one-off gesture.
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Extra Bank Holiday for Queen's Jubilee
Extra Bank Holiday for the Queen’s Jubilee
As you may have heard already, there will be an extra bank holiday to mark the Queens jubilee year, celebrating 70 years on the throne. The May Bank Holiday Weekend will be moved to Thursday the 2nd of June and an additional Bank Holiday on Friday the 3rd of June will see a four-day weekend to celebrate her Platinum Jubilee.
Are my employees entitled to have extra bank holiday for the Queen’s Platinum Jubilee?
It is important to note that employees do not have an automatic right to time off on a bank holiday. It will depend on the wording of their contracts.
For example, if their contracts state that their annual leave entitlement includes usual or standard bank holidays or specifies which or what numbers of bank holidays are included, they will not be entitled to this additional bank holiday.
If their contracts state that their annual leave entitlement is a certain number of days plus bank holidays, then they will be entitled to the additional day’s leave.
What are the entitlements for the extra bank holiday?
You most likely have a process in place for bank holidays, depending on whether your business needs to be staffed on these days. Here are some helpful pointers:
- Staff are entitled to the extra bank holiday if their contract states – 20 days holiday plus bank holidays.
- Staff in England and Wales are not entitled to the extra bank holiday if their contract states – 20 days holiday plus 8 bank holidays (listed).
- Staff in Scotland are not entitled to the extra bank holiday if their contract states – 20 days holiday plus 9 bank holidays (listed).
- Staff are not entitled to the extra bank holiday if their contract states – 28 days or 5.6 weeks which includes bank holidays.
If you have employees working various hours you need to remember that part-time workers should not be treated less favourably than the full-time workers.
What to do if employees are not entitled to the extra bank holiday?
You have the following options if your employees are not entitled to the extra bank holiday:
1. Open on the extra day and require your staff to work as normal.
If you decided to open on the Friday and require your staff to work, they could still request to have that day off as part of their normal annual leave entitlement. However, you do not have to grant that request.
2. Close on the extra day and require your staff to take the day as leave out of their annual leave entitlement.
If you choose this option, you will have to give your employees at least two days’ notice if they are required to use their annual leave entitlement.
3. Close on the day of the bank holiday and grant your staff an extra day’s paid leave on a discretionary basis.
Whichever option you decide to go for it would be recommended that you communicate to your staff as soon as you can.
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The Buzz About Carer's Leave
This month the Government confirmed that it will introduce a 'day one' right to statutory carer’s leave. The new entitlement to statutory carer’s leave will:
1. be available to the employee irrespective of how long they have worked for their employer (a day one right);
2. rely on the carer’s relationship with the person being cared for – a spouse, civil partner, child, parent, a person who lives in the same household as the employee or a person who reasonably relies on the employee for care; and
3. depend on the person being cared for having a long-term care need. This would be defined as a long-term illness or injury (physical or mental), a disability as defined under the Equality Act 2010, or issues related to old age. There would be limited exemptions from the requirement for long-term care, for example in the case of terminal illness.
What can the leave be used for?
Personal support, helping with official or financial matters, or accompanying someone to medical and other appointments.
How can the leave be taken?
Either as a single block of one week, or more flexibly in individual days.
How are employee's to notify their employer?
The notice requirement will be in line with that of annual leave, the employee must give notice that is twice the length of time being requested as leave, plus one day in order to enable employers to manage and plan for absences. Employers will be able to postpone, but not deny, the leave request for carer’s leave on grounds that the employer considers that the operation of their business would be unduly disrupted. Employers will be required to give a counter-notice if postponing the request to take Carer’s Leave.
Is there protections for those undertaking carer's leave?
Those taking carer's leave will be protected from suffering a detriment for having done so, and dismissals for reasons connected with exercising the right to carer's leave will be automatically unfair.
When will carer's leave be introduced?
According to gov.uk this right will be introduced into legislation when Parliamentary time allows. In the meantime employers should start to prepare a written policy to introduce this new requirement once introduced.
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Annual Leave Post Covid
With the pandemic, some employees will have been on furlough meaning they are not working. However, it is important for employers to note that employees who were or are on furlough still accrue annual leave. This is because the contract of employment continues during this period. Employees are permitted to take annual leave while on furlough, without their furlough period coming to an end. If they choose to do so, the organisation will need to top up their pay to 100% of their normal wages if they are receiving reduced pay while on furlough.
Employers may wish to require employees to take annual leave during furlough, for example to avoid a build-up of leave that employees will need to take when they are back at work. Managers should be aware of the company’s approach to annual leave for the period of furlough before making any decisions.
Standard employment law provisions state that employers can require employees to take annual leave as long as they give twice as many days’ notice as the period of leave the employee is required to take. For example, if the employer requires the employee to take two week's annual leave at a certain time, the employer must therefore give the employee at least four weeks' advance notice (or what is outlined in the contract of employment).
As employees return to the workplace from furlough, managers may be in a situation where a number of employees will ask to take annual leave at the same time, particularly when they have leave to take before the end of the leave year. Where possible managers should allow the leave however, they need to ensure business continuity.
Interestingly new research by Acas has found that around 4 in 10 British employees (39%) have taken less paid time off work during the pandemic compared to before it started.
The normal rules on carrying over annual leave have been modified under reg.13 of the Working Time Regulations 1998 to allow workers to carry over up to four weeks' annual leave into the next two holiday years, where it has not been feasible for them to take it as a result of the effects of coronavirus which applies to all employees.
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Vaccinations & The Workplace
With vaccinations rolling out we expect to see the vast majority of healthy adults receiving the vaccine over late summer and early autumn. Thus, providing some optimism for employers who can start planning to return their employees to the workplace. This raises questions such as; can employer’s ensure employees’ health and safety when they return to the workplace? Can employers mandate that all their employees be vaccinated before returning?
Under The Health and Safety at Work etc Act 1974, it is the employer's responsibility to provide a safe working environment for their employees, therefore it is not unreasonable for an employer to want to have their workforce vaccinated. In the past year safety protocols have been introduced making it essential for employers to ensure these protocols are fully implemented if they intend on having their employees return to the workplace, subject to the restriction levels in force.
While it has been highly recommended by the governing bodies that everyone receives the Covid-19 vaccine, it is not mandatory in the United Kingdom. This leaves employers in a challenging situation; while they are seeking to ensure they have a safe workplace for their employees, they cannot force their employees to get vaccinated and it is very unlikely that the UK Government will introduce any laws stating employees are obliged to take the vaccine. Therefore, what are the main considerations for employers?
1.Assess the Risk
Under The Health and Safety at Work Act, an employer must carry out a risk assessment of the workplace and any potential risks that have been identified must be addressed. As scientists are still not clear on whether the vaccine prevents the spread of Covid-19 it is vitally important that employers insist that all employees follow the safety protocols in place whether they have been vaccinated or not.
Employees also have responsibilities under The Health and Safety at Work Act to work together with their employer to protect themselves and their colleagues from potential risks; this could reasonably include the risk of Covid-19 infection. Employees must adhere to all guidelines and protocols implemented by their employers.
Communication is crucial; while employers cannot force their employees to get vaccinated, they can emphasise the importance of the vaccine to their employees and that it would help to return business to normal. Employers should also provide as much information from appropriate sources to educate and inform their employees. An employer may also highlight legitimate circumstances where vaccination is not recommended.
2. Avoid Potential Discrimination
Under the Equality Act 2010, employees are protected from discrimination on the nine grounds including religion, age and disability. An employee may decide not to get the vaccine for a number of reasons that would fall under these specific grounds, such as a medical condition or their religious beliefs. Therefore, it is important to note that any mandate by an employer that employees need to take the vaccine could constitute discrimination under this Act.
3.Managing Employees who Refuse Vaccination
There is little an employer can do if their employee refuses to get the vaccine however, understanding their concerns is important and finding solutions that meet the business needs without infringing on their rights is crucial in managing their integration into the workplace. Extending remote working may be a solution however this may not be viable for all sectors of your company. Employers need to think carefully about any action they take and consider the potential legal consequences associated with these actions.
4.Data Protection Concerns
As part of assessing the risks, employers will certainly want to know who has or has not been vaccinated before bringing employees back to the workplace. In order to process this personal data, there must be a legal basis to do so, the grounds for which are set out in the General Data Protection Regulations. Employees are not legally obliged to provide personal medical information.
While employees are not obliged to provide personal medical information, employers may seek vaccination information on the foundation that they are meeting their legal obligations under The Health and Safety at Work etc Act 1974. It will be up to the employee if they wish to volunteer this information to their employer. If they choose to volunteer this information, then employers should not disclose this information to other employees. As this type of medical information falls under the sensitive category of Special Category Personal Data, then under GDPR and data protection laws there are additional protections afforded to the processing of this information. If an employee volunteers the fact that they have not nor intend to avail of the vaccine, it should be emphasized that there may be legitimate medical reasons why someone may not receive the vaccine.
In conclusion, given the fact the vast majority of the working population will not be returning to the workplace until later this year, it is hoped that the vast majority will have availed of the vaccine. However, communication and planning are essential in ensuring a smooth transition when the return to the workplace occurs. Employers must ensure health and safety policies and procedures are updated, risk assessments are carried out and adhering to safety protocols, all of which are essential in getting people back into the workplace. Remember to be mindful and respectful of an individual’s right to not avail of the vaccine and plan accordingly by offering alternative working arrangements where appropriate and avoid any situation which may constitute discrimination thus leading to legal issues.
Bright Contracts has recently updated its software to include a COVID-19 vaccine policy applicable to any business/ industry.
You can avail of a free trial of the software or purchase a Bright Contracts licence to adapt these policies to your business today or book a demo of the software.
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- How To Manage Annual Leave Requests After Furlough
How To Manage Annual Leave Requests After Furlough
With the coronavirus pandemic, some employees will be on furlough meaning they are not working. However, it is important for employers to note that employees who are on furlough still accrue annual leave. This is because the contract of employment continues during this period.
Employees are permitted to take annual leave while on furlough, without their furlough period coming to an end. If they choose to do so, the organisation will need to top up their pay to 100% of their normal wages if they are receiving reduced pay while on furlough.
Dealing with Excess Annual Leave
As the UK draws closer to the end of lockdown and employees return to the workplace from furlough, managers may be in a situation where a number of employees will ask to take annual leave at the same time, particularly when they have leave to take before the end of the leave year. Where possible managers should allow the leave however, they need to ensure business continuity therefore they will need to balance the employee’s request about the timing of leave against the needs of the business.
Line managers may wish to require employees to take annual leave during furlough, for example to avoid a build-up of leave that employees will need to take when they are back at work. If an employer requires an employee to take annual leave while on furlough, the employer should consider whether any restrictions the employee is under, such as the need to socially distance or self-isolate, would prevent the employee from fully utilising their annual leave for the purpose of resting, leisure time etc. Managers should be aware of the company’s approach to annual leave for the period of furlough before making any decisions.
Standard employment law provisions state that employers can require employees to take annual leave as long as they give twice as many days’ notice as the period of leave the employee is required to take. For example, if the employer requires the employee to take two week's annual leave at a certain time, the employer must therefore give the employee at least four weeks' advance notice (or what is outlined in the contract of employment).
Bank Holidays & Furlough
Where a bank holiday falls within an employee’s period of furlough and the employee would have usually worked the bank holiday, their furlough will be unaffected by the bank holiday. However, if the employee would usually have had the bank holiday as annual leave, the employer should either pay the employee in full for a bank holiday or allow them to take a day's annual leave at a later date.
If a worker on furlough takes annual leave, an employer must calculate and pay the correct holiday pay in accordance with current legislation. It is not permitted for an employer to buy out an employee's statutory annual leave entitlement, i.e. give the employee a cash substitute (except on termination of employment). This prohibition on buy-out applies to the entire period of statutory annual leave, i.e. 5.6 weeks. Where an employer grants annual leave in excess of the statutory minimum, the employer is free to make its own rules and arrangements regarding buy-out in respect of the portion of annual leave that exceeds the 5.6 weeks.
To prevent workers losing their holiday and to enable key workers to keep working, the normal rules on carrying over annual leave have been modified. The Government has amended reg.13 of the Working Time Regulations 1998 to allow workers to carry over up to four weeks' annual leave into the next two holiday years, where it has not been feasible for them to take it as a result of the effects of coronavirus. These amendments to the Working Time Regulations 1998 apply to all employees.
Book a demo of BrightContracts today to discover more features that can help you streamline your HR processes.
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Employers must now include voluntary overtime when calculating holiday pay
A landmark legal victory for Unite union means that employers must now include normal voluntary overtime when they are calculating holiday pay. The ruling is of major significance to workers who receive payments for working voluntary overtime but these payments are not reflected in their holiday pay. The union says that the ruling has set a legally binding precedent which employment tribunals across the UK are obliged to follow.
The Case
The case against Dudley Metropolitan Borough Council was brought by 56 council employees who worked on maintaining Dudley’s housing stock as electricians, carpenters, and plumbers. The employees worked regular voluntary overtime, beyond their fixed contractual hours, including Saturdays and they also elected to go on a standby rota every four weeks, to deal with emergency call-outs and repairs. The loss of earnings from holiday pay underpayments varied between £350 and £1,500 a year depending on each worker and how much voluntary overtime they carried out.
The decision by the employment appeal tribunal is the first to confirm that payments for entirely voluntary duties, such as voluntary overtime, standby, call-out work and travel-time linked to that work, should be included in the calculation of workers holiday pay.
Learning Points for Employers
The area of whether overtime should be included in employees holiday pay is a hot topic. This ruling echoes that of Fulton & Baxter v Bear Scotland Ltd when the ET found that overtime and other payments should have been included in the calculation of holiday pay.
Employers who do not pay employees normal voluntary overtime as part of their holiday pay are urged to reconsider this and make a change otherwise they might see themselves in hot water if a case were brought against them.
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Should holiday pay include overtime and commission?
With the unusually high temperatures we have gotten recently in Britain we can agree that summer is officially here. While that is great news for most, especially for employees packing their bags and getting ready for their summer holidays, it leaves employers with the headache of calculating annual leave entitlements. The areas of whether holiday pay should include commission and overtime have been hot topics of late.
Lock v British Gas Trading Ltd
Mr. Lock claimed that British Gas had calculated his holiday pay incorrectly by not including a commission element. Mr. Lock was employed by British Gas as a sales consultant and receives a basic salary plus commission based on the sales he achieves. During a period of annual leave, Lock saw his income was reduced as he was paid only his basic salary and not commission as he was not making sales during his holiday. The Employment Tribunal found that Mr. Lock’s holiday pay should include an amount to reflect the commission that he would have otherwise earned had he not taken annual leave. They found that by penalizing an employee’s holiday pay might discourage them from taking annual leave for the fact that they would not be able to make sales and earn commission during that period.
Fulton & Baxter v Bear Scotland Ltd
Fulton and Baxter (the claimants) claimed that Bear Scotland Ltd (the respondent) made unauthorized deductions from their wages when overtime and other payments had not been included in the calculation of their annual leave pay. The ET found that by omitting these additional payments from its annual leave calculations, the respondent had indeed made unauthorized deductions from the claimant’s wages.
Learning Points
These recent rulings indicate a new perspective on what is deemed to be fair in relation to the calculation of leave entitlements. In light of these cases, employers across the board are reviewing how they calculate holiday pay. The current position is that, if there is a fundamental link between commission received and the performance of tasks, the commission should be included in the calculation of holiday pay. Therefore, where an employee would have earned commission during the leave period had they worked, it should be included when calculating holiday pay.
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