You may be surprised to know that in some cases your employer can direct you to take some of your annual leave.
That may seem outrageous to you. Isn’t your leave hard-earned and yours to take whenever you wish?
Before you get too upset, you should know there are a couple of conditions that your employer must meet before they have the right to do this. You can’t be forced to take leave without a chance to discuss it first and without a fair amount of notice.
It helps to understand more about decisions around when annual leave is taken, before we examine the circumstances when an employer can tell you to take a break against your will. So let’s consider that first.
WHO USUALLY DECIDES WHEN LEAVE IS TAKEN?
In the normal course of things, you and your employer must agree about when you are going on holiday.
In other words, you can’t just take your annual leave whenever you wish. The employer must consent.
You can understand why this restriction is necessary. It would be hard to manage a business if your employees could choose to take their leave at the drop of a hat, and without any notice to you as the employer. There may be times during the year when it would be inconvenient to the business for employees to go on holiday. Perhaps there is a seasonal busy patch. Maybe the business is short-staffed at other times. In those cases, the employer is within their rights to refuse your request for annual leave.
However, the employer’s right to refuse consent is also limited in a couple of ways:
- the employer must have a good reason for refusing to let you take your holidays at your preferred time. This can include the genuine needs of the business I have referred to above; and
- they must let you take your holidays within the twelve months after they accrue, including one holiday that is at least two weeks long, if that is something you want. That means if your anniversary of employment is 1 January each year and you get to December in your second year of employment without having taken any leave, you can ask to take the last two weeks of that year off and the employer must agree.
These rules regulate the employer’s behaviour to ensure that you can have an opportunity to go on holiday when it suits you best.
But what if you don’t want to take a holiday? What happens then?
WHAT HAPPENS IF YOU DON’T GO ON HOLIDAY?
If you don’t go on holiday, you can find yourself with an accrued leave balance climbing steadily.
That is because everyone gets a minimum of four week’s annual holidays credited to their leave balance every year after their first year of employment.
Your accrued balance of annual leave can only be reduced when:
- you take a paid holiday;
- you ask your employer to cash up at least one week’s holiday per year; or
- you leave your employment and are paid for the holidays you did not take.
Hence, if you do not take your holidays, or get paid out at least one week a year, or leave your employment, you can accrue leave quite quickly. You cannot forfeit your accrued holidays if you do not take them.
Some employees want to accrue their leave like this because:
- they are saving up for a special holiday; or
- they are anticipating that their employment will end soon and want to receive a big lump sum payout for their untaken holidays when they leave.
WHY YOUR EMPLOYER MAY WANT YOU TO TAKE A HOLIDAY
While you may be looking forward to an extra-long break overseas, your employer may be concerned about your stockpiling of leave.
Big accruals of leave are often seen as a problem for employers because:
- if you leave and have accrued a large annual leave balance, your employer will have to find the cash to pay you out the lump sum for your holidays. This can become a business cash flow problem;
- you may want to use that leave at a time when the business is really busy, rather than going on holiday at times when the business can afford to operate with less staff; and
- employees are generally more productive, and less likely to present a risk to health and safety, when they have taken a break from work.
HOW YOUR EMPLOYER CAN FORCE YOU ON LEAVE
The Holidays Act lets your employer address the stockpiled leave problem by letting them direct you to take leave only if they do these two things:
- attempt to reach an agreement with you first about when you will take your holidays and that attempt has failed; and
- give you at least 14 days’ notice of the requirement to take some or all of your accrued leave.
Attempt to reach agreement
That means they should come to you with their proposal for when they think it will be best for you to take a break from work. They should genuinely consider anything you have to say about that and take into account your individual circumstances. However, they do not need to agree with you. If they think that the needs of the business override your interests, then you may have to agree to disagree about when you will go on holiday.
If you both can reach an agreement about when the leave will be taken, then there is of course no need for the employer to go on to direct you to take leave.
However, if you cannot reach an agreement, the employer’s right to direct you to take leave is triggered. That leads to the notice requirement.
14 days’ notice
Of course, the employer can direct you to take leave on much greater notice than 14 days. Often employers will do this in the lead up to Christmas time, where planning for operations over the Christmas period may occur months in advance.
The notice does not need to be in writing. It can be given verbally. However, employers would be wise to record these directions in an email or letter, to ensure you are not confused about when you are required to go on holiday.
However, if the employer gives you less than 14 days’ notice, you should point this out to them. They are not entitled to direct you to take holidays if this happens, so make sure they are aware of that.
If you turn up to work anyway during the time that you have been directed to take a holiday, your employer could still reduce your holidays by the number of days you were directed to take. So it would make no sense to do that. Better to take the break and attempt to reach an agreement with your employer next time about when you will take your holidays.
As an employee, you do not have an unfettered right to take holidays whenever you wish. You must get your employer’s agreement about when you will go on annual leave.
And while you may see an attraction in storing up annual holidays in order to take breaks when it suits you, or in the hope of a large lump sum on leaving, you should be wary of doing this without your employer’s agreement. If accrued leave becomes a problem in your employer’s eyes, and you can’t reach an agreement about when you will use some of that leave, you can be directed to take a holiday on 14 days’ notice.
Hence, the best thing for employees to do is to be wise to this risk and keep an open communication going with their employer about when they want to take holidays.
If you want to take a lengthy break for a particular reason, talk with your employer about when that can happen, and let them know you will need to stockpile some leave to cover for that holiday.
Avoid stockpiling leave in the hope of a payout or lengthy break at a time of your own choosing. Take the opportunity to have a rest from your work at a time that you prefer, otherwise you may find the employer decides for you!