Annual Leave & AWOL

[sri_130]

Hi,
One of my staff members has booked a holiday.
Despite a prior verbal agreement that holiday couldn't be taken in a specified period (not written down, so fair enough) she has booked and paid for it, then asked for annual leave after booking the holiday.

I informed her that leave cannot be taken in that period (its actually an 8 week period of the year where we are super busy) unless cover can be arranged. She has asked other staff members, who cannot cover for her - nor can I, as the 8 week period is actually the start of my maternity leave!

I have refused the leave request, which is unfortunate as she has paid the holiday in full - not really my problem, but still, its not nice for her.

The staff member has today told me they intend to go on their holiday and not attend work. Which would mean she would be Absent Without Leave for 7 working days, during a busy period, with no cover - my business would have to close (Im on mat' leave having just given birth or about to pop!) which would have a severe impact on the future of the business, I am only a sole trader.

I am therefore a little stuck. I need staff to cover for me whilst I am on maternity, but cannot have staff dictating leave at the expense of the business itself. If we all did that, we would have closed a long time ago! The busy period is where we make most of the money, which then suplements the poor weeks/months throughout the rest of the year.

I have informed the staff member that failure to attend work will result in dismissal, as I have refused the leave request. I would class this as misconduct?

Would that be correct? If the staff member doesn't show for work, there is a good chance the business will close down anyway, never mind having to dismiss anyone! The timing of the booked holiday couldn't have been worse (busy period, me on mat leave and other staff members cant cover), but I didn't book it! Its a shame she values the pre-booked holiday over her job.

Is dismissal acceptable when staff don't show up for work?! some misleading information is on the internet and ACAS have said you should hold a meeting etc etc (done that, she has told me explicitly she is going on the holiday regardless) and then seek legal advice!

Any guidance?

 

[ccp consultancy]

How long has she been employed with you, does she have an employment contract / employee handbook.

When she gave the holiday request to you, how soon after giving it to you did you refuse the holiday, you need to refuse any holidays within 7 days (for one weeks holiday).

When is she due to go on holiday (is it too late for you to get emergency cover via a temp member of staff - because in reality she is going to take the holiday which will leave you in big problems)

This most definitely could fall into the realms of gross misconduct - it is gross insubordination - she is deliberately not following management instruction - that being that she is not permitted to take annual leave during the busiest period.

I would advise writing to her and informing her in no uncertain terms, that you do not authorise for her to take annual leave, and that if she does not attend on the days in question you will view this as a gross misconduct and she will face disciplinary action on her return, which could result in dismissal.

ACAS are correct you will have to hold a meeting prior to making a decision. You must follow procedure in order to prevent any possible wrongful dismissal claims.

 

[sri_130]

How long has she been employed with you, does she have an employment contract / employee handbook.

When she gave the holiday request to you, how soon after giving it to you did you refuse the holiday, you need to refuse any holidays within 7 days (for one weeks holiday).

When is she due to go on holiday (is it too late for you to get emergency cover via a temp member of staff - because in reality she is going to take the holiday which will leave you in big problems)

This most definitely could fall into the realms of gross misconduct - it is gross insubordination - she is deliberately not following management instruction - that being that she is not permitted to take annual leave during the busiest period.

I would advise writing to her and informing her in no uncertain terms, that you do not authorise for her to take annual leave, and that if she does not attend on the days in question you will view this as a gross misconduct and she will face disciplinary action on her return, which could result in dismissal.

ACAS are correct you will have to hold a meeting prior to making a decision. You must follow procedure in order to prevent any possible wrongful dismissal claims.

Thanks for your reply.

She has worked for me for 12 months. There is no contract or handbook, my own fault, I make no apologies for that.

She didn't actually request anything at first, she sent me an email telling me her mum had booked her a holiday and it was on XX dates and that was that. I then approached her in person and informed her that a) that was not the way to request leave (the member had already had an informal warning about conducting concerns via email and text!) and b) if it was a leave request - which prompted a yes - that it was refused, unless cover was sought. This was all conducted within 5 days, the request and my response.

She is due to go on the holiday in June - getting a temp is not an option as its a hair salon, appointment based and already there are bookings in her column for those dates. Not only it would take a while to get another staff member up to speed, with their own clients and be trust worthy etc etc.

If she does go on the holiday, yes I am well and truely stuck. BUT I cannot dismiss her until she doesn't show - which gives me a 3 month head start on the potential problem. My plan would be to recruit someone on part time hours and give my self at least 9 weeks for them to shadow me and then fufil the roles if the other staff member does go on the holiday. If she has a change of heart, then at least this new member can take up my workload (or some of it) whilst I am off with the baby.

I guess thats the only thing I can do? But not attending when we have prebooked appointments and having the leave refused, must surely be enough for me to say - goodbye, all the best.?

 

[ccp consultancy]

OK - so this is slightly different

In the absence of an employment contract - how does your employee know the procedure for booking holidays, is there a notice on the board. Has the employee taken holiday previously, and if so how did they book their leave - is there a form to complete. Is there a handbook within the salon staff area that has rules and regs for her to view

Before you take any action against this employee you need to deal with the fact that she does not have a contract - as this should have been issued within 2 months of commencing employment. If you do decide to dismiss, following a disciplinary hearing - if she does take you to a tribunal for unfair dismissal and you do not have this in place the tribunal could make an award against you for up to 4 weeks statutory monies (which is up to £1600) for failing to provide an employment contract / statement of particulars.

You need to clearly document that you have refused the holiday request and that (x clients) are booked to attend.

You definitely need to have a contingency - I think the part time option is a perfect solution, because you can use your maternity leave as a perfect cover for the real reason behind this, so at least if she does go AWOL then you have limited damages to a certain extent.

You can dismiss if she takes the unauthorised holiday as long as it is spelled out to her prior that you would deem this as gross misconduct if she takes this leave. And you will have to conduct a disciplinary hearing on her return to work, which could end in a decision to dismiss, once you have reviewed the evidence submitted to you.

Hope This Helps

 

[sri_130]

Hello and thanks again,

Yes, staff have an annual leave request form to complete and submit, which is reviewed by me and then the decision is discussed privately after we've arranged cover and then blanked out the calendars etc.
The arrangements for organising leave were explained verbally in her induction - I understand a written contract should replace this and cover the remaining aspects.

The point with the contract now, is that I am unsure she will sign one, given we have gone through this juncture. Of course that is not a reason to present one (I do have one from last year that was worked on with the longest serving member of the team).

I will draft the letter to her tomorrow stating what we have discussed and reasons why, many thanks for advising that.

Having a contingency is a definite. Without one, I will have no business, make 2 local women redundant and have a terrible period of maternity - The options are to do nothing (not really an option) or return to work almost instantly after giving birth or hopefully find someone within 3 months - I sure hope someone needs the job!

I will explicitly define absent without leave as being classed as gross misconduct before hand. Just a shame that an ill timed (i'd more so say, irresponsibly) booked holiday could cost her a job, me a member of staff or even worse, an entire business.

Such is life. Thanks for your help.

 

[mit74]

Ok I'm no expert but every job I've worked in no matter how much annual leave you have you have no say when you take it. You can request when you want it and if the employer says no sorry we're too busy, too many people are taking annual leave or whatever you can't really argue. Every job I've been in would treat this clear defience as gross misconduct and I would expect to be sacked.