If our employees’ job nature cannot be fulfilled from home, is it okay if we ask them to take annual leave days or reduce working hours? What are the legal implications behind such measures?
Whether employees can be asked to take annual leave depends on whether the annual leave is statutory or contractual:
- Statutory annual leave – you are generally free to determine the dates on which your employees must use their statutory paid annual leave provided you have: (i) consulted with them in advance; and (ii) given not less than 14 days’ written notice. There is no definition of what amounts to sufficient “consultation” – provided you have entered into some form of dialogue with employees and allowed them some time to consider their views, this should be sufficient.
- Contractual annual leave – how such leave is to be taken is subject to the terms of the employment contract/applicable company policy.
In terms of reducing working hours, the general position at law is that employees have an implied right to work and employers cannot ask them to stop working without their consent in the absence of a contractual or statutory right to do so.
Reduced working hours (providing less work for less pay) would give rise to potential claims for breach of contract, constructive dismissal and/or failure to pay wages (which is a criminal offence) if it is unilaterally imposed by an employer.
However, a reduction of working time and salary can be implemented with the express consent of the employee. We recommend that any such consent be carefully documented to avoid later dispute as to what was agreed.