Summer is upon us and so Steve Macguire, Managing Director of Creideasach Employment Law Specialists, answers a few of the holiday-related questions most commonly asked by employers across Clackmannanshire.
Q. I have just received a request from my employee to take 2.5 weeks away. Can I decline the request?
Steve: The short answer is yes. Either contained within their contract of employment or within an Annual Leave Policy an employer will ordinarily detail the procedure an employee should follow in requesting annual leave. Even in the absence of any guidance for employees an employer retains the right to decline such a request. What is key for the employer in refusing such a request is that they articulate the rationale behind their refusal and apply such rationale equally, fairly and consistently to all staff.
Q. I am confused, what is an employee’s holiday entitlement for a year? Is it 4 weeks, 20 days or 28 days, help?
Steve: This employer is not alone in their confusion. The statutory minimum annual leave entitlement is 5.6 weeks per annum which, if an employee works five days a week, 9am to 5pm, would amount to 28 days. If an employee works part time they are entitled to a proportion of the 5.6 weeks per annum calculated in accordance to the number of days / hours worked. By way of an example if an employee works two days a week, 9am to 5pm, their holiday entitlement is 11.2 days per annum.
For clarity, contrary to its name and unless otherwise stated within the contract of employment, there is no statutory right to a ‘statutory’ holiday, public holiday or bank holiday. If you are likely to close your business on such days then you can detail these days within the contract as part of the employees 5.6 weeks per year entitlement. If you do not close your business on such days and an employee wishes to take the day off they would request a day in accordance with your procedure and, if approved, this day would come out of their annual leave entitlement in the same way as any other approved annual leave day.
Finally an employer can always choose to offer additional annual leave entitlement to their staff and this would be detailed in their terms and conditions of employment and would be calculated on a pro-rata basis for part time staff.
Q; My employee is on holiday in Spain and they have just called me to inform me they are unwell. Why are they telling me and what do I do?
Steve: If the employee has complied with the employer’s Sickness Attendance Policy then the employer must collate this day as their employee’s first day of sickness. If an employer only operates a Statutory Sick Pay Scheme then, subject to meeting certain eligibility requirements, an employee who works five days, Monday to Friday, would have three waiting days (Monday to Wednesday inclusive) for which they are not entitled to any pay during this period and would be entitled to Statutory Sick Pay for Thursday and Friday. Clearly, in such circumstances, an employee’s wage would be reduced for this period from holiday pay to Statutory Sick Pay. They would, however, have their annual leave days returned to them to use on a future occasion in the leave year.
In the circumstances where the employer operates a Company Sick Pay Scheme, the days would still be collated as sickness days but, subject to the Company Scheme, the employee’s pay is unlikely to be reduced for the period and they will be entitled to the return of their holidays to use on a future occasion in the leave year.
Steve Maguire is a Qualified Employment Law Specialist and is the Managing Director of Creideasach Employment Law Specialists. He advises employers in a variety of contentious and non-contentious matters and his clients include charities, third sector organisations, and private sector employers throughout Scotland.
Creideasach Employment Law Specialists are based at Forrester Lodge, Alloa, call them on 01259 211210.