For November 2022, we have asked the employment team at Tughans’ Solicitors to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal, from time to time, with the less commonplace disputes at work; issues that may, if handled incorrectly, lead to claims of discrimination, constructive dismissal or some other serious difficulty.

In this month's article, Emma Doherty, Associate at Tughans addresses a topic that many employers will be contemplating at this time:

“We are expecting a number of competing holiday requests from employees over the World Cup and this time of year is our busiest period.  We won’t be able to accommodate them all and are concerned that staff will just call in sick. How do we handle this?”

Under The Working Time Regulations (Northern Ireland) 2016 (WTR) employees are entitled to take 5.6 weeks of paid annual leave. The World Cup, starting on 20th November 2022, may result in multiple requests for annual leave, which will inevitably cause operational difficulty for the company. Requests for annual leave may be refused in certain circumstances, although caution should be exercised, as mishandling of requests could prove problematic for you.

As an employer, you must handle holiday requests in an open, fair and consistent manner. Where it is anticipated that numerous employees will request time off simultaneously, it may be prudent to deal with requests on a “first come, first served basis” and grant requests that will not have a detrimental impact on daily operations.

This issue is two-fold in nature; therefore the company should take a dual-limbed approach:

1. Firstly you should consider the holiday request and ask yourself can you approve it, if not, what are your reasons for refusal?
2. If you have not approved the holiday request and the employee proceeds to call in sick, how should this be addressed?

Can the request for annual leave be approved?

When acknowledging an employee’s holiday request, as a starting point, you should consult their contract of employment, together with any staff handbook to confirm the company’s position in relation to holiday requests.

1. Has the request been made in line with the company’s policies and procedures? Has the employee given appropriate notice?
2. When does your “leave year” run? Does the employee have holiday entitlement remaining, or have they exhausted their annual entitlement?

Under Regulation 18 of the WTR, an employee must give notice equating to twice the amount of time they are requesting as annual leave (i.e. 1 month for 2 weeks holiday). This may prove problematic in the event employees request one day’s leave to watch a football match, as they are technically only required to give 2 days’ notice. On this basis, it is useful to have a specific policy/contractual provision relating to the correct process and desired notice period when it comes to requesting annual leave.

If the employee has followed company procedure, has provided adequate notice and has sufficient leave allowance, you could grant their request for annual leave.

In the event multiple employees request the same day(s) off, as you say, this will inevitably impact the daily operations of the company. In certain circumstances, you can refuse a request for annual leave, however your reason for doing so must be reasonable (i.e. proceeding to grant the request would be impractical, the time off requested is during a “peak” time for the company or granting the leave request could have a negative impact on the company.) Please note, in the event the period of leave has been pre-approved, employers cannot cancel this pre-approved leave if it inhibits the employee from taking their statutory leave entitlement for the respective annual leave year.

Under Regulation 18 of the WTR, if denying a request for annual leave, employers also have an obligation to provide sufficient notice of refusal. This notice must be given as many days in advance as the time the employee has requested as leave (i.e. 1 weeks’ notice, where the request for leave is 1 week).

It is imperative that your reason for refusing an employee’s annual leave request is reasonable. If an employee is prevented from taking their annual leave without reasonable justification, they could bring a complaint to the industrial tribunal.

Managing potential sickness absence

Refusal of an employee’s request for annual leave, may cause the employee to become disgruntled and as a result, they could call in sick, or call in sick to watch the football.

You should treat each instance of alleged sickness absence on a fact specific basis. While some instances of sickness absence may be disingenuous, others may not be. Normally, where a period of genuine sickness coincides with annual leave, the employee should be allowed to delegate this period of leave to an alternative date in the future.

Employers should consider the following when handling instances of sickness absence:

1. Has the employee followed the correct company procedure? (i.e. have they informed their line manager within the appropriate timeframe?)
2. Has the employee indicated when they will be fit to return to work?
3. Can the employee self-certify, or will it be necessary for them to provide medical evidence?

Once you have received appropriate information from the employee, you will be better equipped to determine whether the absence is due to genuine sickness.

Generally, any conduct suggesting the sickness absence is not genuine could be viewed (in the most serious cases) as gross misconduct and could warrant dismissal. As always, facts differ in each scenario and discretion should be exercised accordingly.

If you believe the sickness absence is because of your refusal to allow leave, depending on the severity of the situation, you may discipline the employee in line with the company’s disciplinary procedure. If dismissal is the most appropriate way forward, employers should always adhere to the statutory dismissal procedure as outlined below. You should consider the employee’s existing disciplinary record and alternative reasonable sanctions before deciding to dismiss:

1. The employer must provide the employee with a written statement of what they are alleged to have done wrong.
2. The employer must invite the employee to a meeting to discuss the allegation(s).
3. The employer must inform the employee of their right to appeal any decision.

Failure to adhere to the above procedure, could result in the dismissed employee bringing a claim of unfair dismissal (and potential discrimination) against their employer in the industrial tribunal.