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Refusing annual leave – employer’s rights.
Under Working Time Regulations 1998, all workers are entitled to at least 5.6 weeks of paid holiday per year. However, workers do not have complete freedom to take holiday when they choose to. Employers need to be able to plan and make sure that sufficient cover is in place when a worker takes annual leave. Some businesses have particularly busy ‘pinch points’ in the year (Christmas and Easter for hospitality; Black Friday and Christmas sales for retail). Employers need to know the ways in which they are able to manage how and when workers take their holiday.
The law
Under Working Time Regulations 1998, workers must give notice of at least twice the length of the holiday they wish to take. So, for a one-week holiday, the worker must give at least two weeks’ notice. If they don’t do this, then you are entitled to refuse the holiday request.
If the employer wants to mandate that holiday is taken at a certain time, then they are able to do so. In the same way as employees, they must give notice of at least twice the length of the holiday period which is being mandated.
Employers don’t have to agree to holiday requests. They can refuse them by giving notice which is at least as long as the length of the holiday requested.
Equally, employers are able to change their mind. They can approve a request for holiday and then, at a later date, rescind that approval. This isn’t a good idea from an employee relations point of view and should be handled with caution. However, you must give notice which is at least the same period as the length of the holiday (so one week for one week etc.).
A holiday policy – helping employers to stay in control
The Working Time Regulations 1998 has helpful ‘flex’ built in on the issue of holiday. Employers, provided they follow the notice requirements, can mandate certain days as holiday, refuse requests, or change their mind about a request. However, it is better for employers to tailor holiday rules to their own business by putting holiday rules in the contract of employment and/or a separate holiday policy. This allows the business to, for example, set out a mandated period of shutdown where a certain number of days of holiday must be taken. It can also designate periods where holiday is not able to be taken.
Having a holiday policy means that everyone is on the same page. Employees understand exactly what they need to do in order to maximise the utility of their holiday entitlement each year. Employers maintain control over the situation, making sure that the business continues to operate optimally when employees are away from work.
3rd party pressure: a fair reason for dismissal?
The Employment Rights Act 1996 recognises five potentially fair reasons for dismissal: conduct, capability, redundancy, illegality and ‘some other substantial reason’. When faced with an ordinary unfair dismissal claim, Employers have to set out which of the five reasons they rely upon as the reason for dismissal. They must then show that dismissal for that reason was fair in all the circumstances.
‘Some other substantial reason’ (‘SOSR’) mops up situations which do not fall neatly into any of the other four categories. It has developed, over the years, through case law.
One of the areas which can be covered by SOSR is where a third party applies pressure to the employer to dismiss the employee for some reason. This often happens where a business’s employees are deployed to client sites. If the client takes exception to an employee and asks for them to be removed, then the employer can potentially rely on SOSR to dismiss. However, this principal does not give employers a ‘green light’ to jump on any client complaint and dismiss the employee, as the recent employment tribunal case of Darling v ICTS demonstrates.
In this case, Mr Darling was employed by ICTS as a security supervisor. He worked at a hospital, who engaged ICTS as their security provider. Mr Darling was arrested for alleged misuse of CCTV footage. A police investigation was initiated which was likely to take six to 12 months. The hospital told ICTS that Mr Darling could not return to site whilst he was under police investigation. ICTS dismissed Mr Darling, relying on SOSR (third party pressure) as the reason. The employment tribunal held that he had been unfairly dismissed. Whilst third party pressure can amount to ‘some other substantial reason’ in certain circumstances, ICTS had been wrong to jump directly from the client’s refusal to allow Mr Darling on site to a decision of dismissal. ICTS had lots of other contracts in place with other clients. It should have taken pro-active steps to consider alternative employment before deciding to dismiss. Mr Darling had been directed to ICTS’s job vacancy site, but the tribunal said that this was not sufficient. There was a “lack of action” by ICTS on this.
This case is an important reminder that the existence of third party pressure to dismiss does not give an employer the green light to do so. Alternatives should be pro-actively considered before a decision to dismiss is taken.
Wrongful Dismissal: What HR Needs to Know
Wrongful dismissal is a contractual claim that arises when an employer dismisses an employee in breach of their contract of employment. It has nothing to do with whether the dismissal was fair — that falls under statutory unfair dismissal rules. Wrongful dismissal is simply about whether the employer followed the contract.
What is wrongful dismissal?
The most common example is failing to give the correct notice. If an employee is entitled to three months’ notice but only receives one, the employer has breached the contract, and the employee can claim the value of the notice they should have received.
However, wrongful dismissal can also arise from breaching other express, implied, or incorporated contractual terms – not just notice clauses.
Notice periods: express, statutory and implied
HR teams should remember there are three potential notice periods:
If the contract gives less, the statutory minimum overrides it.
When dismissal without notice is lawful
Dismissal without notice — summary dismissal — is not wrongful where the employee has committed gross misconduct, meaning a fundamental breach of contract that destroys the employment relationship. The employer can then treat the contract as terminated immediately, without notice or pay in lieu.
However, HR should avoid “instant” dismissals. Even in clear gross misconduct cases, employers should follow a fair disciplinary process, both because it may be contractually required, and to reduce unfair dismissal or discrimination risks.
Key takeaway for HR
Wrongful dismissal is ultimately about contract compliance. Ensure notice provisions are correct, check statutory minimums, follow procedures, and assess conduct carefully before deciding whether notice can be withheld.
Data Protection and Monitoring: What employers need to know
Monitoring employees almost always involves collecting personal data – whether that’s CCTV footage, system access logs, browser history, location data or recorded calls. Because of this, any monitoring must comply with the UK GDPR and Data Protection Act 2018, which set out strict rules on what data can be collected and how it must be processed.
Under the GDPR, employers must follow the seven core data protection principles, ensuring that personal data is:
Purpose and lawful basis
Before any monitoring takes place, employers must identify a specific purpose and a lawful basis. Common bases include complying with a legal obligation, performing a contract, protecting vital interests, or pursuing a legitimate interest. Legitimate interest is the most flexible but still requires employers to show the monitoring is necessary and does not override employees’ rights.
While consent is possible, it is rarely reliable in employment due to the power imbalance between employer and employee.
Special category data
Some monitoring – such as biometric systems or browsing history revealing religious or political views – captures special category data, which is subject to even stricter rules. Employers must meet an additional condition, such as protecting health and safety or demonstrating substantial public interest.
Fairness and transparency
The monitoring must be something employees would reasonably expect. Covert monitoring is only justified in exceptional circumstances, such as serious crime, and even then, must be tightly limited.
Employers must also provide clear privacy information, explaining what data is collected, why, who can access it, and how long it will be kept. Early staff engagement helps build trust and reduces the risk of complaints later.
Data minimisation, accuracy and security
Employers should collect only what is necessary, guard against “function creep”, ensure systems are reliable, and keep data secure through restricted access, encryption and proper training.
By embedding these principles, organisations can monitor responsibly while protecting staff privacy and reducing legal risk.
And finally, harassment is a serious offence. If it is related to one of the protected characteristics under the Equality Act 2010, then it can give rise to an employment tribunal claim and substantial financial awards. It can also be a criminal offence. Sometimes, conduct taking place at work satisfies not only the employment law definition of harassment, but also the criminal standard.
Against this backdrop, the Telegraph has reported that a Metropolitan Police call centre manager was found guilty of harassment in the criminal courts after targeting a colleague with unwanted gifts and messages. This is a rare case where workplace harassment strayed into criminal conduct. The manager was handed an 18-month community order and a two-year restraining order. Some of his harassing acts were eyebrow raising to say the least, including gifting a signed photo of the rock band Queen and expensive perfume, claiming to be Ronan Keating’s cousin and posing as Ronan himself in messages sent to his victim.
Being given gifts and being contacted by a pop star may not look like classic examples of harassment as they are all, on the face of it, ‘positive’ actions. This does not mean that they cannot also be harassment, either in the criminal sense (as in this case), or in an employment context. This case is a reminder to employers that harassment can take many forms. If conduct is ‘unwanted’ by the victim then, provided it is reasonable for them to feel that way, it can and will be harassment in the eyes of the law.
