This week an apprentice cannot be trusted. Can they be forced to take their annual leave when the boss is away? Esther Smith and Matthew Whelan advise.
The question
My friend employs an apprentice, who, when recently working on a job on his own, managed to cause a lot of damage, lost a valuable customer and also cost money in repairing the damage. My friend is going through the proper channels to discipline him for this.
He is on holiday for two days next week, and doesn’t want this employee working on his own and has therefore cancelled the work he had for those two days. The question he is asking is, can he also make his employee take those two days as annual leave?
Legal advice
Esther Smith, partner, Thomas Eggar
The answer to this generally speaking depends on the contractual arrangements regarding holiday and whether the employer retains the right to dictate when the employee should take paid leave.
If there is no contractual provision giving you to the ability to dictate when leave is taken, or indeed entitling you to “lay off” the employee for short term periods, then really your best position is to try to reach agreement with the employee in question as to how you are going to cover these two days. If he refuses to take paid holiday to cover the days, then you could try to argue that as he is not required to undertake work on those days he will not receive pay. However, I anticipate that the contract of employment (or apprenticeship if it is a genuine apprenticeship agreement) provides an obligation on the employer’s part to provide him with work. Alternatively, you might want to find something relatively meaningful that he can do for those two days that isn’t likely to result in further cost or damage being done!
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Matthew Whelan, solicitor, Speechly Bircham
Yes, an employer can require an apprentice to take annual leave on specific dates. However, the employer’s right to do so is dependant on giving the apprentice the requisite notice of this requirement. Such notice must be at least twice as many days as the period of leave that the apprentice is being asked to take. So, in this case, the apprentice would need to be given at least four days’ notice. I would recommend written notice is given.
You should, however, check the apprentice’s contract as this may vary the notice requirements and if it does the employer should comply with these notice requirements.
Of course forcing the apprentice to use their annual leave entitlement on specific dates may be unwelcome and could lead to other complaints being raised.
If the employer has run out of time to give the requisite notice then an informal approach may be adopted. The employer could simply give the apprentice the time off as paid leave with the apprentice’s agreement. Although this will cost the employer, it may be a better alternative to leaving the apprentice alone and taking the risks that come with this. The employer could also consider engaging the apprentice in alternative activities whilst he is away, such as enrolling the apprentice in a training course.
Please note that apprentices have greater employment protection than ordinary employees and the employer should bear this in mind in dealing with this issue going forward.
