Working while on annual leave: Are you really on holiday?  

Working while on annual leave: Are you really on holiday?  

Technology has changed the relationship many employees have with their work. Instead of work being left at the office, emails and phone calls can follow us anywhere- even on holiday. This raises the question, if an employee continues responding to emails while on leave, are they on holiday or are they at work? 

In Wanaka Pharmacy Ltd v McKay the Employment Court considered the question of how many holidays an employee had taken in reality. Ms McKay was an employee in a family business and handled incoming phone calls and emails. She very rarely took any holidays.  Even when she did take a holiday, she continued to answer phone calls and emails. Her former employer agreed she had performed this work but argued that this was her choice, and she could have diverted her calls or chosen not to respond to emails.  

 The Court reiterated that the purpose of annual holidays is to provide for rest and recreation, as outlined in s3(a) of the Holidays Act. It also recognised that these “benefits are undermined if an employer requires an employee to be responsive to emails and phone calls while on annual holidays or to undertake other tasks”. However, it drew a distinction between an employee who chose to work on holiday and those who were required (directed, pressured, or expected) to work. Only the employees in the latter category, those who were required to work, would have their right to holidays impeded.   

On the facts, the Court held that Ms McKay had been working while on holiday. Although her emails or phone calls could have been diverted, the employer took no steps to encourage or ensure this was done. Because Ms McKay was required to work while on holiday, her ability to have rest and recreation was impeded. While the entirety of her holidays were not negated, she was given credit for time she was required to work while on holiday.  

This judgment draws a distinction between being merely physically absent from the workplace and a true holiday where there is no requirement to work. Both employers and employees should take note, and perhaps turn on the out of office for the next holiday to avoid working while on annual leave.  

 

If you have any questions or queries in relation to your work situation , please get in touch with the Watermark team directly. We are happy to advise you.

Kylie Hudson

Associate