Nicola McMahon, Charles Russell: Working on holiday

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August is traditionally peak holiday season in the UK but according to a 2,500-strong poll recently commissioned by Regus, instead of using holiday time for complete rest and relaxation away from work, 39% of employees will be working up to three hours each day and 8% will be working over three hours a day.

In light of these statistics employers should fully consider the impact of their employees working on holiday and consider whether they should be taking steps to ensure that their employees take a proper break.
The impact of employees working on holiday

Whilst it is very easy with today’s technology to work on holiday, which might suggest that keeping in touch with work matters does not need to be disruptive, if employees are not able to switch off and relax they are less likely to return to work feeling reenergised and motivated and business productivity may suffer.

In addition to the ease with which we can now keep in touch, the economic downturn in the UK and increased competition for jobs may also have contributed to pressure on workers to work outside their core hours and keep in touch even whilst on holiday.

There is a risk that staff who work whilst on holiday will not get the health benefits of a complete break and will, as a result, go on to suffer with stress-related ill health. Working on holiday may also interfere with precious family time which could have a detrimental impact on relationships and potentially cause further stress. Stress, whether triggered by work or external factors, is the main cause of long-term sickness absence in Britain and can, therefore, effect a business’ productivity and bottom line.

The counter argument put forward by advocates of working on holiday is that the pressures associated with getting things done before going away coupled with the mountain of work awaiting their return creates far more stress than simply keeping in touch and up to date with emails whilst they are away. In addition, for small companies, it may be essential for executives to work on holiday for the smooth running of their business.
Legal entitlements to holiday

Under the Working Time Regulations 1998 all workers are entitled to a minimum of 5.6 weeks paid holiday per year including bank holidays. This is equivalent to 28 days holiday per year for a full time employee who ordinarily works 5 days per week.

This minimum legal entitlement to paid holiday, which was introduced by European legislation, is intended to provide a period of rest away from work. As Lord Justice Mummery stated in the recent, high profile case of NHS Leeds v Larner the purpose of paid annual leave “is to enable a worker to enjoy rest, relaxation and leisure: it is for the protection of health and safety”. The fact that it is not possible for employees to contract out of their statutory holiday entitlement and that pay in lieu of statutory holiday is prohibited except where a worker’s employment is terminated, highlight the importance of the requirement for workers to take proper and regular breaks away from work.

Employees may also have contractual entitlements to additional days’ holiday, granted by their employer under the terms of their contracts of employment.

Legal risks to the employer

If a worker is prevented by their employer from taking their minimum statutory entitlement to holiday they can bring a claim in the Employment Tribunal for financial compensation. Therefore, there is a theoretical risk that if a worker is specifically required by its employer to work whilst on holiday, even to check and respond to emails or phone calls, the worker could bring a claim that their employer refused to permit them to take their full statutory holiday entitlement in breach of the Working Time Regulations 1998 because they were unable to rest and relax throughout their holiday.

If workers freely choose to work whilst they are on holiday then they should not be able to bring such a claim. However, there could be a grey area, although untested in the courts and tribunals, if employers do not specifically instruct their workers to keep in touch whilst they are on holiday, but there is an established custom and practice that they will do so. In this situation workers could seek to argue that they were prevented by their employer’s established practices from taking their full holiday entitlement.

If employees are prevented from taking holiday in accordance with the terms of their employment contracts, they may also bring claims for breach of contract and may seek compensation for any financial loss they have suffered.

As highlighted, there is also a risk that employees who work on holiday may develop stress-related conditions. Furthermore, if a culture of employees working whilst on holiday develops it is likely to set a dangerous precedent that employees are “on call” at all times and thereby significantly increase the likelihood of the workforce being affected by work-related stress.

Health and safety legislation imposes a general duty on employers to ensure, so far as is reasonably practicable, the health and safety and welfare of all their employees at work. Employers also have a duty to undertake risk assessments and manage activities to reduce the incidence of stress at work and these duties could extend to ensuring that employees have taken sufficient breaks away from work. At its most severe, breaches of health and safety legislation could result in criminal sanctions.

Employers are also under a common law duty to take reasonable care for the health and safety of employees in the workplace and employees suffering from work related stress could bring personal injury claims against their employer. In addition, if such stress amounts to a disability under the Equality Act 2010, employers may find themselves exposed to possible claims for failure to make reasonable adjustments, disability discrimination, harassment and victimisation.

Steps employers can take

If employers are aware that their workers or employees are working whilst on holiday, it is advisable for them to investigate the underlying causes of this. There may be a lack of either capacity and capability which has led to work not being
completed within working hours and the business may need to look at ways of increasing efficiency and productivity.

In light of the detrimental impact employees working whilst on holiday may have on a business and the risks of litigation, employers should consider addressing the situation if their employees are working whilst on holiday. The most cautious approach would be for employers to implement a policy that prohibits working on holiday to reduce the likelihood of arguments that employees were prevented by their working culture from taking their full holiday entitlement.

However, such a rigid policy is unlikely to be workable in practice and a more commercially sensible approach might be for businesses to actively encourage employees not to work whilst on holiday except where absolutely necessary. What is certain is that employers should be actively encouraging employees to book and take their full entitlement to holiday in each holiday year and, whilst they are away, should not be imposing strict requirements on employees to work or expecting them to be constantly contactable whilst away.

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