In an article first published by Thomson Reuters, Managing Associate, Annabel Mackay, explores the difficult issue of managing holiday requests. Holidays should be for rest and relaxation yet we continue to see a raft of case law on the subject of annual leave. Recent surveys have demonstrated that the issue of holiday booking can be a source of tension between colleagues, with workers even resorting to subterfuge in order to secure their preferred dates. As employers continue to make headcount reductions, those left covering the holiday absence are under more pressure than before. How do employers navigate this difficult area?

There are various approaches to managing holiday requests. Some employers will grant annual leave requests as and when they are submitted, having regard to the cover that will remain in place at that time. A cursory glance on various chat rooms reveals the tension that can arise when workers repeatedly get their leave requests in first. Where certain periods are particularly popular, such as Christmas and Easter, it can be better to set a deadline for requests and for the employer to consider each request on its merits, according to business needs. Employers should still be aware that there will be occasions when they will need to be flexible, where there are other periods of religious significance or special circumstances surrounding the request (such as attending a family anniversary). 

The use of a deadline for submitting requests raises the question as to whether those with families should get priority — a topic that is guaranteed to generate much debate online. A policy of giving preferential treatment to those with childcare responsibilities may be well-meaning, particularly given the constraints imposed by school term restrictions but can create tension. Just as all employees with the requisite service have the right to ask to work flexibility, irrespective of their circumstances, so all employees may ask to take holiday by giving the requisite notice.

While some employees may wish to take advantage of the cheaper rates available outside of the school holidays, they may also have good reasons for wishing to take their holiday at a particular time — not least, the vagaries of the British weather. In common with Acas recommendations on handling competing flexible working requests, employers could choose names at random or leave employees to resolve the issue among themselves. If employees are unable to reach agreement, a rota system could be used.

Employers should not under-estimate the problems associated with operating a holiday booking system that is not considered fair or effective by the workforce. A 2015 survey by Stephensons law firm found that a fifth of those surveyed had admitted to using a "sick day" when they did not secure their preferred annual leave dates. The survey also confirmed that 11 percent of employees were also prepared to claim that their holidays had not been properly recorded, due to an administrative error, when they were beaten to it by colleagues. Employers need to be aware of these issues to minimise the potential for abuse, confrontations between colleagues and even grievances.

Having resolved the potential for conflicts regarding holiday booking arrangements, what other problems may arise? The European Court of Justice has repeatedly emphasised that the mandatory annual leave entitlement serves a health and safety purpose. A period of sick leave is not the same as a period of holiday. If an employee becomes ill in advance of a period of pre-arranged holiday, they are entitled to reschedule so that they can take that holiday during the remainder of the holiday year or carry it forward, where they are unable to do so.

The same principle applies where employees become sick during the holiday itself. The carry-forward period must be longer than the 12-month reference period but we still await further guidance on that subject. One case suggested that a 15-month carry forward period would be sufficient as there would come a point where the period of annual leave ceased to achieve its health and safety objective and became a period of rest and relaxation.

What can an employer do to guard against employees extending their holiday absence for minor illnesses or injuries sustained during their holiday? An employer may insist upon the employee reporting the situation to their line manager and providing the evidence that they are unfit to work, before any contractual sick pay is due. In practice, howover, it seems unlikely that an employee would seek to invoke an employer's sick pay arrangements unless they are very unwell. The possibility of an employee devoting part of their holiday to weighing up whether to invoke their employer's sickness procedures seems remote unless their condition is particularly serious.

Employment issues can arise upon an employee's return to work as well. What is the position if an employee's flight is delayed or there is another reason why they cannot return to work as planned? The employer's policies and procedures should make it clear that a failure to return at the scheduled time will amount to unauthorised absence from the workplace. The employee must report that absence at the earliest opportunity.

The level of pay received during that period of absence will depend on the employer's policies. It may be designated as additional holiday by the employee if they have sufficient holiday entitlement left. Alternatively, if the employer has reserved the right to make a deduction from wages in the contract to cover this situation, it would be unpaid leave.

Employers must be careful to consider whether the surrounding circumstances trigger the application of any other employment policies. If an employee returns late because they have had to make arrangements to cover a period of illness or injury of a family member, the right to a reasonable amount of unpaid emergency dependant leave may apply. The test is whether there is an unexpected emergency. The employee is entitled to a reasonable period within which to make necessary arrangements to cope with that.

 Finally, let's not forget about those employees who provide cover for their colleagues during periods of holiday absence. A survey of 1,000 workers by Elance-ODesk in 2014 revealed that employees left behind worked an average of six and a half extra hours per week, with 52 percent leaving the office later and 49 percent taking work home and working over the weekend.

The consequences of such additional workload were also apparent from the survey. Workers admitted to making mistakes and taking on work for which they were not qualified. One in 10 workers considered leaving their employer as a result. These kinds of sentiments can give rise to a number of employment issues including grievances and higher levels of sickness absence and work-related stress. Employers must ensure that they allocate work appropriately and that they provide proper cover for extended periods of holiday absence.

Holidays serve a valuable health and safety purpose but, for the reasons discussed, they can become a source of stress and tension in their own right, not least for HR practitioners keeping up with the case law and legislative developments. Employers can guard against some of the problems identified in this article by having clear policies on holiday booking, sickness immediately before and during and employees returning late from holiday. The nature of the day-to-day working environment is also crucial. If employees are not put under excessive pressure when covering for their colleagues' absences, the same level of resentment regarding annual leave arrangements is unlikely to arise.