Ms W was entitled to four weeks annual leave from commencement of her employment in 2006. For the first three years of her employment she did not record any time taken as annual leave and said that she worked most if not all of the non contact time save for a very few days which she agreed she had full days off effectively on annual leave. This situation seemed to be accepted by the employer until early in 2009 when she was questioned about her annual leave.
She was instructed to supply the employer with a list of days that she took as annual leave. She provided no such list because she believed that she had not taken any annual leave of any significance.
The employer did not accept this and went back to the electronic records of her attendance at the centre. The electronic record was said to be an accurate record of when Ms W was and was not in attendance at the centre. (What came out in the hearing was that the electronic record was not accurate.)
The employer decided, upon reviewing the records that what had happened was that every day during non contact time when the electronic system recorded time as “normal” was time that the employee was actually on annual leave and a significant deduction was made by the employer from the employees annual leave entitlement. The employee did not agree and the wage arrears action ended up in the Employment Court.
The Court noted that the starting point was the Employment agreement which provided no better terms than the Holidays Act - in fact it simply echoed the Holidays Act.
The Holidays Act is clear that “When annual holidays are to be taken by the employee is to be agreed between the employer and the employee” (section 18(3)) or “An employer may require an employee to take annual leave if - … the employer and employee are unable to reach agreement under section 18(3) as to when the employee will take his or her annual holidays…” (Section 19).
Therefore unless the employer could prove that
· The employee agreed to take annual leave ;or
· The employer directed the employee to take annual leave by way of a written direction specifying the days and giving 14 days notice (section 19 (2) of the Act)
then Annual Leave had not been taken in terms of the Act and no deductions could be lawfully made.
This is a salutary reminder to employers that they need to be assiduous in their monitoring of annual leave otherwise they could find themselves in conflict with their staff about what was, or was not, annual leave.
We suggest that time sheets be kept by all employees – even salaried employees.
If employers are concerned about annual leave accumulating then the employer needs to take steps to address this – strictly following the requirements of the Holidays Act.
Ms W recovered some (but not all) of the annual leave that the employer had “deducted’ from her.
