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11th July 2013

Can I disturb an employee who is on holiday?

Fortunately, the law is unusually non-prescriptive on this matter.

The employee might like to be disturbed. On my first holiday in my first managerial job my staff broke into my desk on the authority of a more senior manager, I was annoyed not just because of the breach of privacy (there were salary details in that desk) but because I was a new manager, had been at home and would have happily come in to work.

The Working Time Regulations (WTR) do not define “leave”, unlike “rest periods” which have to be “uninterrupted”. One might argue though that leave is not really leave if it is interrupted, or at least if it is interrupted to some unreasonable extent.

Directors are obliged to act in the interests of their company, so we might assume that this would over-ride the WTR – there, are in any case, exceptions for managing executives. One anecdotal test of a managing executive is one who can go and play golf whenever he or she chooses!

But to return to employees, the word “reasonable” re-emerges. A quick phone call to check a fact must be reasonable; the requirement to do a few hours work is hardly so – maybe substitute holiday would make it reasonable depending on the circumstances.

Employees who live on the premises are particularly vulnerable to an unreasonable level of intrusion, especially if they take holidays at home and, in some cases, have to leave through the premises to go to the shops, for example. The danger of being unreasonable, perhaps inadvertently, is much greater.

It is worth considering the employee’s remedies if you are unreasonable, as the WTR provides for a worker to make a complaint to a tribunal. There are other considerations; the psychological contract for one. This concept describes how an employee feels willing to give 100%, 120% or even several hundred % as against 50-75% of contractual expectations, which might appertain to some employees. How they see the psychological contract will determine how they are likely to react if you contact them on holiday. Excessive intrusion is likely to reduce their commitment to you, whereas reasonable intrusion may actually make them feel more important and more likely to give.

Excessive intrusion also puts you at risk of a constructive dismissal claim. This is unlikely and, in any event, to be successful in such a claim the employee would be wise to raise a grievance first. While anyone can leave and raise a claim there are increasing barriers to doing that vexatiously. Some risk of claims nevertheless remains.

To sum up, the answer to the most popular question that I am asked (can I?), is another popular answer – yes, if you are reasonable!


Malcolm Martin

Topics: QCS

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