Holiday allocation
Holiday timing
Duty to discuss
Duty to notify
Changing agreed holiday
With summer approaching, many employees have already started planning their holidays. For employers, this can pose scheduling challenges, as large numbers of employees may be away from work at the same time. This article provides an overview of the most important rules in the Holidays Act, so that employers can avoid as much disruption as possible.
Section 5 of the Holidays Act stipulates that all employees are entitled to 25 working days of paid annual leave each year. The concept of a "working day" includes all days except Sunday and public holidays. The requirement under the law is that the employees must have a holiday for four weeks and one day per year. Employees over the age of 60 must also be given extra leave for six working days.
However, many employees are covered by a collective agreement that gives them the right to five weeks' holiday or have an individual employment contract that gives the right to more holiday than what the law provides. It is important, therefore, to be aware of how much vacation time the individual employee can and must take each year.
In principle, the employer can – by virtue of the right to manage – decide when employees can take a holiday. This means that the employer can plan the employees' holidays in order to avoid disruption to the business. If, for example, July is usually a hectic period, the employer may decide that the employees must take holidays at other times during the year.
However, the Holiday Act contains certain provisions that must be followed when determining the time for holidays. Firstly, section 7 of the Holiday Act entitles employees to take a main holiday of 18 working days (three weeks) between 1 June and 30 September. However, there is nothing that prevents employers and employees establishing voluntarily agreements that the main holiday can be taken outside this period. Secondly, employees over the age of 60 can decide for themselves when they want to use their extra holiday week, unless otherwise stated in a collective agreement or individual agreement.
Even if the employer has the final word regarding the point in time of the holiday, section 6(1) of the Holidays Act imposes an obligation to discuss the determination of holiday time and the establishment of holiday lists. Discussions can take place with individual employees or with employee representatives on behalf of a group of employees. The discussion means that the employee will have the opportunity to make known their holiday preferences; however, the employer is not obliged to meet these expectations.
The discussion must take place "well in advance" of the holiday. The law does not define "well in advance"; however, the discussion should take place so early that the employer actually has the opportunity to take the employee's wishes into account when planning their holiday. In contrast to the duty to notify, the dialogue should at least begin more than two months before the holiday begins.
According to the section 6(2) of the Holidays Act, employees may demand to be notified of their employer's decision on their proposed holiday period as soon as possible or no later than two months before the holiday begins. The duty to notify is conditional on the employee – either individually or through an employee representative – explicitly demanding to be notified. If the employee has not requested this, the employer can provide information about the holiday later. For larger companies, however, it may be a good idea to give employees joint notification well in advance of the holiday period in order to avoid many individual inquiries and to ensure that everyone receives sufficient information.
The two-month deadline does not apply if there are "special reasons" that prevent the employer from providing such information. This is primarily aimed at operational conditions, and not conditions that apply to the individual employee.
Employees may wish to change the agreed dates of their holiday due to unforeseen circumstances. Section 6(3) of the Holidays Act gives the employer a certain right to change the stipulated holiday if it is necessary due to unforeseen events that will create significant operational problems, and no substitute can be obtained.
The question of change must be discussed with the employee in advance. The Holiday Act uses the term "significant operational problems", which primarily includes more extraordinary situations to establish a high threshold for changing a planned holiday without the employee's consent. However, there is nothing to prevent the employer and employee from voluntarily agreeing that the holiday should be changed from what was originally stipulated.
If the employer unilaterally decides to reschedule the holiday, the employer must cover additional expenses resulting from this. The liability for compensation includes additional expenses for both the employee and their immediate family. Practical examples of such expenses often include:
- cancellation fees;
- rental expenses for cabins; and
- costs for hotel rooms.
For further information on this topic please contact Ole Kristian Olsby or Lise Gran at Homble Olsby | Littler by telephone (+47 23 89 75 70) or email ([email protected] or [email protected]). The Homble Olsby | Littler website can be accessed at www.homble-olsby.no.