CAN AN EMPLOYER FORCE AN EMPLOYEE TO TAKE HOLIDAY AT A SPECIFIED TIME?
It is not uncommon for employers to determine that employees and workers cannot take time off at certain times of the year. This is particularly true in certain industries (for example, industries that rely on seasonal work or where demand for a particular product or service goes up or down depending on the time of year) where contracts regularly contain clauses stating that employees and workers are barred from taking holidays at certain times.
But can an employer force an employee or worker to take holiday at a particular time of the year? The short answer is yes, although it is not as simple as that.
Employers who think they may wish to exercise such control would be wise to ensure that the employees’ contracts of employment contain a clause stating that they are required to take holidays at a certain time, perhaps during certain months of the year. This will usually give the employer the most amount of control over when holidays are taken and the most amount of protection against any claims in relation to such a demand.
Whether or not such a clause is necessary in a contract depends on the nature of the employer’s business and their reasons for wanting it. If the business is seasonal, employers may wish to take on temporary workers to cover for staff absences, although this can be expensive and potentially lead to a drop in productivity at a key time of the year.
Such a clause in contracts is not always present. Also, the worker or employee may not have a contract of employment. Whilst having express provision in a contract of employment is preferred, if an employer does not have a contract of employment, or there is no such a clause contained in a contract to rely on, they can still compel an employee or worker to take holidays at specified times by giving notice ordering a worker or employee to take statutory holiday on specified dates under the Working Time Regulations 1998. Such notice must be at least twice the length of the period of leave that the worker or employee is being ordered to take so if the employer wants the worker or employee to take two weeks’ holiday then four weeks’ notice must be given. There are no explicit requirements about the form that this notice must take although it always advisable to ensure that a written record of any such conversation is kept on the worker’s/employee’s personnel file and it is backed up with a letter to the worker/employee setting out what leave must be taken and when.
As with all workplace decisions, it is important to ensure as an employer that all workers and employees are treated equally, as far as possible. This is so as to avoid unwanted allegations of discrimination, which could lead to costly claims against the business. Similarly, if a worker or an employee objects to the notice due to certain personal circumstances (such as childcare commitments), employers should consider whether or not forcing the worker or employee to take holiday at a certain time may be discriminatory in that way as well.
For further information about this area of law or if you have any other employment law queries, please contact a member of Chattertons’ employment team.