The Employment Act provides minimum basic rights of every employee. Some of the rights stated include minimum wages, leaves, lawful working hours, overtime, etc. This article focuses primarily on annual leave or leave with pay. Is it right for employers to force their employees to go on leave in order to reduce their leave days or not? Read on!
Background information
Section 98(2) of the Employment Act states that “every employer shall grant to every employee employed by him leave with basic pay at the rate of not less than 1,25 days per month.” This means the minimum number of days an employee can accrue as annual leave is 1.25. However, the employer can opt to grant the employee more than 1.25, basically “from the goodness of their heart” or as a form of motivating factor or retention strategy.
Section 98(6a) of the same Act continues to state that “where a contract of employment is terminated by either party to the contract, the employer shall pay to the employee his basic pay- in respect of any period of leave accumulated under subsection (4) or which has otherwise accrued to him but has not been granted before the termination of the contract of employment.” Payment of annual leave days which have not been utilised during the course of one’s employment is usually where the problem comes.
Some employees have a very high number of annual leave days, which has a similar effect on their leave pay, i.e., it being high. Therefore, employers try to reduce them or control the number of leave days by making employees go on leave as per their request. The million-dollar question is, is this lawful? Continue reading!
The law
Annual leave was set up to assist in ensuring that employees get time off to rest and recover from the strains of work life. This is in addition to the rest days and holidays. In short, the law would rather have employees utilise their annual leave days than accumulate them and receive payment for them at contract termination. The previous statement brings us to section 98(3-4) of the above-mentioned Act and it reads “of the 15 working days’ leave earned in respect of any period of 12 months not less than eight working days shall be taken no later than six months immediately after the end of the period in respect of which the leave was earned.
Any balance of leave not taken in accordance with subsection (3) may be accumulated, year by year; but such leave shall not be accumulated for longer than three years immediately after the end of the period in respect of which leave was first accumulated, and at the end of that three years’ period all the accumulated leave together with all the leave earned in respect of the immediately preceding period of 12 months shall be taken.” In a nutshell, an employee is allowed to accumulate leave for three years after the first year of accumulation. Each year from year 2, they must have utilised at least 8 days within the first 6 months. Then, by the end of the final year, they must have used up all their leave days.
Conclusion
Annual leave is granted, meaning it is requested by the employee. As much as the Act, to some degree, forces employees to utilise their annual leave days as mentioned above, employers on the other hand do not have that luxury. In the absence of any proper leave planning strategy/policy, employers can only propose that employees go on leave at a certain point and the employees are at liberty to accept or decline the proposal.
Contacts
If you want to join our free HR WhatsApp group or to consult, contact us on +267 75 54 67 84, +267 393 9435 or info@aupracontax.co.bw.
