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Where an employee wants to cancel a pre-arranged period of holiday, in the absence of a contractual right to do so, they will need their employer’s agreement.
The Working Time Regulations 1998, SI 1998/1833 do not give employees a statutory right to cancel a pre-arranged period of holiday, and it is unusual for holiday provisions in an employment contract, or a holiday policy, to allow for this.
In most cases, therefore, it is likely to be down to the employer to decide whether or not to agree to the request.
There are competing interests to consider, particularly in the context of coronavirus (COVID-19): on the one hand, an employee who has had a holiday cancelled because of coronavirus will want to save their holiday entitlement until such time as they are able to re-schedule their holiday. They may prefer not to use precious holiday entitlement confined to their home under lockdown.
On the other hand, an employer may prefer employees to continue to take holidays during the lockdown period—not least to minimize the extent to which employees build up sizable chunks of holiday entitlement which they then want to take when the lockdown ends and business go back to normal. There are likely to be economic and operational reasons underlying this concern.
The health and wellbeing of the employee is also a relevant consideration in favour of the employee taking pre-arranged time off work.
Employers, employees and workers are encouraged in the Advisory, Conciliation and Arbitration Service (Acas) guidance to be as flexible as they can about holiday during the coronavirus pandemic.
The guidance suggests that it is a good idea for the parties to:
(See: Acas guidance on using holiday in the context of coronavirus).
When it comes to dealing with a request to cancel holiday in this context, relevant practical considerations for the employer are likely to include:
An employer is under an implied contractual duty not to treat the employee in a wholly unreasonable manner under the imposed term of trust and confidence (see Practice Note: The term of trust and confidence). This could, depending on the circumstances, be relevant in the context of dealing with an employee’s request to cancel or re-arrange a period of holiday where the holiday has been cancelled because of the coronavirus pandemic. The employer’s decision-making should be rational and consistent.
How an employer has treated other similar requests in the past will also be relevant if the decision is to refuse the employee’s request; there is a discrepancy between how it has treated this employee relative to others; there is no reasonable, objective explanation for the discrepancy; and the employee has a protected characteristic (see: Prohibited conduct—overview).
For further information about holiday, generally, see Practice Note: Holiday.
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