As the shops fill with tinsel and the dulcet tones of Noddy Holder, and inboxes bulge under the weight of emails from temps with end of year holiday requests, the festive season can be a mixed blessing. Thankfully, there are steps that recruiters can take to stop requests snowballing out of control.
Rights to annual leave
To understand how to deal with holiday requests it is important to recognise holiday entitlements under Working Time Regulations 1998 (WTR). This includes:
paid annual leave according to the statutory minimum (currently 28 days) leave limited to the amount of annual leave the temp has accrued in the first year of employment no payment in lieu of statutory entitlement to leave, except if the employment has terminated.
Furthermore, the Conduct of Employment Agencies and Employment Businesses Regulations 2003 obliges recruitment businesses to inform temps in their terms of engagement of any entitlement to annual leave and pay, such as how much leave a temp has, how they can apply for that leave and when the leave year starts and ends.
Seasonal demands in supply
Often, temps want to use their annual leave during the Christmas period, but some clients will need temps to meet seasonal demands.
So what can be done?
Although a recruitment business will not be permitted to prevent temps outright from taking leave, those wanting to take annual leave can be required to give notice in line with the recruitment business’ policy. If there is no specific procedure in place, the default notice is twice the length of the amount of leave that is being taken. So if the request is for leave of one week, two weeks’ notice must be given.
A recruitment business can also set out (in conjunction with the client) particular periods during which leave cannot be taken or to decline a request. However, repeated refusals to leave requests or other procedures that prevent temps from taking their leave will amount to a breach of the WTR.
If a temp does give the correct notice it will be for the recruitment business to determine whether they are able to take the leave. Although the recruitment business can decline a request for leave the recruitment business will need to ensure that if they do decline a request they don’t prevent the temp from taking their leave in the leave year.
If a temp has simply not taken their leave by the end of the leave year, nor been prevented from doing so, there is no entitlement to roll leave over. This is up to the recruitment business.
Under the WTR, a recruitment business may pay a temp for leave they have accrued but not yet taken when the temp’s employment with the recruitment business has terminated.
So how does a recruitment business determine when the ‘employment’ of the temp has ended? Sometimes there is a clause in a temp’s terms of engagement confirming that if the temp has not been supplied for a specified period, then the recruitment business will issue a P45. Alternatively the temp may give an indication that they do not intend to carry out any further assignment.
When the ‘employment’ ends there is an obligation to pay the temp for any statutory holiday that has accrued but not been taken.
In a world where clients want temps on tap and temps save up their leave for Christmas, it is imperative that recruitment businesses set out clearly their holiday leave policies and procedures for their temps so that they are encouraged to take leave before the leave year ends.
This entry was posted on Thursday, November 30th, 2017 by:
Ash O'Keeffe - REC legal advisor