Ireland is one of the only countries that can say it has had “unseasonal” good weather in the summer months. We are more used to rainy summer days than sunny ones. However, with the good weather often comes a high level of absenteeism as employees seek to take advantage of the weather while it lasts. Therefore, employers will not be surprised to hear that since 1 June 2013, the Peninsula Ireland 24 Hour Advice Service has handled over 600 queries relating to sickness absence alone. A common issue for employers also relates to an employee being refused an annual leave request but then they either take that leave anyway (i.e. AWOL) or they happen to fall sick during that leave period. This regularly occurs where the employee has booked flights and/or accommodation in the belief they will be granted the leave. The EAT recently considered the fairness of dismissing an employee in these circumstances Employee -v- Employer (UD1908/2010) In this case the employee worked as a childcare assistant at a Crèche and in January 2009 she informed her manager that she was planning a trip to Australia. When she informed her Manager of the dates, which would require 28 days annual leave, she was told it was in excess of the 20 days annual leave she was entitled to. The board, therefore, refused the annual leave request
- Key note: An employer is perfectly entitled to refuse annual leave that is in excess of an employee’s annual leave entitlements.
Annual Leave Difficulties Unfortunately, the employee had already booked the holiday prior to booking her leave. However, she ultimately sought to change her holiday dates to January 2010 and reduced the time off to 19 days leave. This she did at considerable personal expense. However, this second booking was also refused by the board. The employee subsequently went out on sick certs for four weeks. Work or Resign? When she returned from sick leave in December the employee was again refused her January leave. Up to this point the employer has acted reasonably but it is here that the employee claimed that she was told that she could resign her position and reapply when she returned from Australia. The employee would have been out-of-pocket by almost €1,500 had she forfeited this trip and so she decided to take the trip, but had not resigned before doing so. Upon her return, the employee was dismissed for gross misconduct and paid her notice. Determination The Tribunal deemed the dismissal to be unfair as they did not view this behaviour as gross misconduct. In awarding the employee €20,000, the EAT held that the employee had a reasonable expectation that her leave (originally for 28 days in September but reduced to 19 days in January would have been approved, and that the employer acted unreasonably by dismissing the employee. Impact for Employers Employers should be aware that for the most part it is their right to accept or reject any annual leave requests, however at some point (potentially following a rescheduling of dates to accommodate the business) an employee can have an expectation that leave should be granted. Employers should be satisfied that they have a very good reason for refusing annual leave as opposed to refusing it due to some slight inconvenience. As this case outlines, should an employee take leave that was refused, even if this means that they go AWOL for a protracted period of time, it may not constitute gross misconduct, especially where the employee had a reasonable expectation that their request could be facilitated. Conclusion Annual leave should be mutually agreed and employers should have a clear holiday request procedure in place in order to prevent issues occurring where employees have already booked flights prior to requesting the time off. A holiday planner may be used to inform employees of available dates and it can be used to plan minimum staffing levels in a business, which can ultimately reduce the above case from surfacing. Importantly, if there are times each year where you just cannot accommodate annual leave at all (perhaps you have a particularly busy season) then this should be notified to employees from the outset and perhaps even included in the employee handbook. One way or another, the most important advice for an employer is to have a well thought out policy that is clearly communicated to employees. Employers should seek advice from Peninsula Business Services if they have any questions in respect of annual leave or an AWOL employee. Please phone the 24 Hour Advice Service on 01 855 50 50 and one of our experienced consultants will be happy to assist.
