In our Series 001, MMW Advocates issued an article on when an employee is entitled to sick leave in the wake of coronavirus and the legal process involved in the request and granting of leave.
This article seeks to now address the issue of annual leave and unpaid leave. Businesses have been forced to release their employees from the workplace. It is foreseeable that many businesses may not sustain paying their employees in the absence of income due to the economic go slow caused by the effects of COVID-19. Most employees may also find it difficult to perform their contractual roles if they are unable to get to the office. This said non-performance of critical obligations by employees will affect businesses’ profitability and liquidity.
It is likely that employers will find themselves in situations where they will require to have their employees take annual leave or eventually request their employees to take unpaid leave. While this may be a considered route for most businesses, it should be noted that our Labour laws require strict observance of its provisions on the issue of leave.
In a bid to ensure that these provisions are adhered to, MMW Advocates has answered FAQs on leave;
Can an employer force an employee to take annual leave?
The law requires the consent of the employee, and the same cannot be forceful.
Does working from home qualify as annual leave?
There is a clear distinction between annual leave and working from home. The law provides that any environment that an employee undertakes their role or duties assigned by an employer will be considered as a workplace. Employers will therefore have to choose whether the employee is on annual leave or is remotely working.
Can an employee be forced to go on unpaid leave?
There are certain scenarios where an employee can be sent on unpaid leave, including supervening circumstances such as this pandemic, BUT it must be within certain legal modalities. The law requires that the intention of the employer must be clear. Unpaid leave cannot be used as an unfair and back door route toward terminating an employee. One of the ways to go about it is having agreements can be drafted by an advocate on the terms of the unpaid leave.
In conclusion, it is imperative to note that annual leave and unpaid leave must be undertaken with the consideration of the employee. It must be within the parameters of the law to avoid unnecessary litigation and liability.
Please feel free to reach out to MMW Advocates for a more detailed opinion on the issue of annual leave, unpaid leave, and the legal considerations therein.