Every year my department has taken 3 days off in-between Christmas and New Year, as we have a lull in business over this period. However, this year one of my employees doesn’t want to take these days out of his holiday package. There won’t be any work for him to do and nobody to supervise him; can I make him take these days off as paid holiday leave?

What employers often don’t realise about employment law on annual leave is that they have the ability to dictate when their employees can and cannot take their time off. The Working Time Regulations 1998 contain a provision allowing employers to enforce annual leave on employees as long as they adhere to certain notice provisions.

In short, if an employer wants to make an employee take annual leave, they must give the employee notice that is twice as long as the amount of time in question e.g. if the employer wishes the employ to take a week’s annual leave, he must give at least 2 weeks’ notice.

Many employers operate a company shutdown for various reasons at certain times of year, very commonly at Christmas due to a lack of workload. This is often notified in the employee’s contract of employment, either in their statement of main terms of employment or their employee handbook. A common further condition on this is that the employee must reserve a portion of their annual leave entitlement to cover the days spent on shutdown i.e. the time off is not given in addition to their contractual annual leave entitlement. This then becomes a contractual term of the employee’s employment on which the employer can rely as long as it is clear that the employee has been given the contract and they have signed for it. This can count as the relevant notification under the Working Time Regulations.

Even if the contract doesn’t include such a term, the employer may still be able to rely on the operation of the shutdown if it has always happened without fail for a considerable amount of time. In this case, it could be argued that it has become a term of the contract by way of custom and practice, and therefore the employer can rely on it.

Even if it couldn’t be established that it was a term of the employee’s contract that annual leave should be used for the shutdown, the employer can give separate notice of that fact that he will enforce annual leave on the employee. The notice of this enforced leave must be given at least 6 days before the first day of the leave to be taken. It should be explained to the employee that this is the intended action, and the reasons behind it should be explained. The employee should be in no doubt that he will be classed as being on holiday on that day and will be paid as such. To ensure a paper trail, you should give the employee a letter setting this down in writing in accordance with the required time scale.

Where it is a term of the contract, this extra step can still be used to clearly remind the employee of the term; that this is permitted by the Working Time Regulations and this enforcement will be in operation.

If you have any queries regarding this issue please call our 24 Hour Advice Service on 0844 892 2772.