Ensuring employees take their annual leave

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Employees often choose not to take annual leave in times of uncertainty. Should employers intervene?

New data from the Office for National Statistics (ONS) has revealed that the amount of holiday being taken by employees has reached its highest level since 2007. However, the figures also show that workers are exceeding their contracted hours and choosing not to take holiday during times of uncertainty; either through job insecurity, fear of redundancy or financial necessity.

In these circumstances what should employers do to ensure staff take their annual leave and do not work excessive hours?

The current right to 28 days’ annual leave, inclusive of bank holidays, is set out in the Working Time Regulations 1998 (WTR). The WTR also state that a worker’s average working time (including all overtime) must not exceed 48 hours per week, although UK employees can voluntarily sign an 'opt-out clause' and agree to work longer. The underlying principle behind the WTR is to ensure people's health and safety.

An employer must take all reasonable steps to ensure that the 48-hour working limit is complied with. Failure to do so is a criminal offence punishable with a potentially unlimited fine.

Even if an individual has agreed to opt out of the limit employers still have a duty to protect their health and safety. Organisations need to have procedures that enable them to monitor and manage working hours. Employers should also encourage employees to achieve a good work/life balance and should take care not to reward presenteeism.

Long hours are often cited in stress at work cases. In the Hone case, a pub landlord brought a claim for personal injury on the basis that he was working between 82 and 92 hours per week. Eventually he collapsed at work following giddiness and chest pain. He was awarded £21,840 in damages for psychiatric injury caused by stress.

Employers could also be found liable for injury caused to others. Tired workers on long shifts operating heavy machinery put their co-workers at risk, while those driving home at the end of a 12- hour day, for example, could injure members of the public.

In relation to holiday, there is no specific legal obligation on the employer to ensure an employee takes their statutory holiday. However, regulation 15 of the WTR allows an employer to require workers to take annual leave and also to specify the days on which that leave must be taken.

So should employers exercise this right and 'force' workers to take their annual leave? Where an organisation sees that an employee is exhibiting signs of stress and exhaustion the answer is probably yes. The employer has a duty to consider ways of reducing that person’s stress levels, which could include requiring them to take a period of annual leave.

Ultimately it is not in anyone’s interest to have tired over-worked employees. It would be prudent for employers to encourage staff to take their full annual leave and to remind them that they need to book leave. This provides evidence, should a claim be brought, that the employer recognises that its people need to have adequate time off work and promotes a culture where taking holiday is welcomed.

Ed Stacey is head of employment at PwC Legal

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