Keeping your business staffed over summer

With summer in full swing and the school holidays right around the corner, many employees will be planning to use some of their annual leave.

As employers, this can result in a few headaches especially when deciding how best to make sure your business continues to run smoothly during this period.

Legally, employees are entitled to at 5.6 weeks paid annual leave, including bank holidays. To avoid issues it is best practice to make sure that there is a clear annual leave policy in place. It is likely, that more than one staff member, especially if they have children, will request the same holidays. In this circumstance it is not unreasonable to implement a policy of first come, first served, however, for the sake of clarity this should be contained within a policy.

Of course, this can lead to issues surrounding an employee who calls in sick when they have had their request for leave denied.  An easy way to resolve this is to ask for proof of sickness, but remember, for illness, an employee can self-certify for a number of days before the need for a doctor’s certificate.  Also questioning an employee about their sickness absence can affect the employment relationship in relation to trust and confidence.

However, if an employee falls ill during or before their holiday, they may be allowed to carry their leave forward and use it at a different time, although at present this area of law is unclear. A case heard in the European Court stated that employees are allowed to carry their leave balance forward and use it at a different time. This case is not a legal precedent in UK courts, but it is likely that it will be followed by UK employment tribunals.

It is highly likely that successive staff members will take leave in the summer months, and most will probably be heading abroad.  This throws up another issue if they are delayed back for whatever reason.  Mostly, this will be down to unavoidable transport delays, just think back to 2010 and the Eyjafjallajökull ash cloud that grounded flights for six days.

In this situation, the action that an employer can take is dependent upon the type of work than an employee does and also the contractual employment terms. If an employee is provided with wages for work that they actually perform (for example, piece work or hourly paid employees with no guarantee of hours), then there is no requirement for them to be paid if they cannot attend work. However, if an employee is paid on the basis that they are ready and willing to work (e.g. salary workers) then the situation is far from clear. The ACAS guide says that an employee who cannot attend work due to bad weather or flight delays is not ready to work and therefore not entitled to pay, whereas, limited case law based on other situations would suggest that they are ready and therefore should be paid. If pay is going to be withheld there needs to be a contractual right to do this contained within the employment contract and it should be 1 days pay for 1 days absence.

Employers should also consider wider implications that not paying an employee may have, such as the employment relationship and potential bad publicity. An employer could ask an employee to take the time as annual leave or for the employee to make up the lost hours when they are able. If a delay does happen, employees should report in daily and give progress updates.

Employers should also ensure that contingency plans and policies are in place to ensure their business can run effectively.

For more advice on employment law, or any other employment law matter, please contact our Employment team on 01772 258321