The Right Of An Employee To Take Leave

What is leave?

Leave is authorized absence from work for a period of time authorized by the employee’s workplace. An employer has a duty to accord their employees rest time off work and with pay and also accord the employee the other benefits that come with the contract of service such as job security.
An employee is also entitled to time off work on public holidays and the employer has to pay the wages due to the employee even on such days.
Leave for an employee is an entitlement that can only be taken away expressly by the employee himself or herself.
Whereas different employers have different practices in relation to leave, the Employment Act, provides minimum thresholds/requirements for the enjoyment of leave by employees.

NOTE: An employer is a person or organization that employs people. An employee is a person employed for wages or salary, especially at non–executive level.

According to the law, an employee may apply for leave under several circumstances as shown below;

1) Annual leave

In a calendar year, an employee is entitled to a seven-day leave period for every four months of continuous service.
Therefore, every employee is entitled to a minimum of 21 days off work annually.
The employer has a duty to continue paying the employee his/ her salary even during the period the employee is off work.
Before taking leave, the employee is expected to inform their employer of their intention to take leave through a written
When the employer receives the application, he/ she is expected to grant the employee leave or upon certain circumstances, to defer/postpone the period that the employee can take leave.
Where the employer rejects or defers (postpones) the employee’s application for leave, they are supposed to notify the employee of the rejection or postponement. However, an employer can only defer an employee’s annual leave to the following calendar year with the consent of the employee.
Where the employer refuses to grant leave, he or she should pay the employee for forfeiting/ giving up their leave.

NOTE: However, any agreement to relinquish or forego an employee’s right to annual leave for payment in lieu of leave is null and void.

Failure to apply for leave within a given year implies that the employee has forfeited his/ her right to leave and cannot claim for it after termination by the employer. If an employee does not apply for leave when he/she is aware of their right of leave, the presumption is that he/she has voluntarily denied themselves leave and he/she cannot claim it unless the employer consents to it.

NOTE: The duty is placed on the employer to inform the employees of their right to take annual leave. In the absence of this, an employee’s failure to apply for leave will not work against him/her as it may be argued that the employee was not aware of such right.

Section 75(b) of the Employment Act provides that an employee cannot be terminated for proposing or taking leave to which, that employee is entitled.

NOTE: Annual leave is a fundamental term of a contract of employment and an employer’s failure to grant leave gives an employee a right to terminate the contract.

2) Maternity leave

A female employee who gets pregnant is entitled to 60 days off work with full pay by the employer.
At least 4 weeks of the leave shall be taken after child birth or a miscarriage.
The female employee has an opportunity to return to their job or an alternative given by the employee after the maternity leave.
Where the female employee or their babies suffer illness and that prevents the employee from returning to work immediately, the female employee shall be granted eight weeks from the date of birth or miscarriage.
Before taking maternity leave, the female employee is required to give notice to the employer of their intention to take leave.
- Where the employer asks for written notice, the employee is required to comply.
- The notice shall be given at least 7 days or a reasonable period of time before the employee takes leave.
Where the employer asks an employee to produce a medical report to support their request for leave, the employee shall be required to produce the medical report.

3) Paternity Leave

A male employee is entitled to 4 days off work immediately after his wife has delivered or suffered a miscarriage.
The male employee is entitled to full payment of his wages while he is away.
The male employee has a right to return to the job he had before he took leave.

4) Sick leave

An employee who has continuously worked for an employer for at least 1 month has a right to ask for time off work when he/she is incapable of working due to sickness or injury.
The notification of the inability to work should be made to the employer as soon as possible.
The employee in that case will be entitled to full wages and benefits per the contract of service for the first one month they will be away from work.
Where the employee’s illness goes on for a period exceeding two months, the employer may terminate the contract of service but this has to be done in compliance with all terms of the contract.
The employee shall have to produce periodic medical reports on his/ her illness from a certified medical practitioner but the demand for periodic medical reports shall not be a period of less than a week from the previous submission.
Where the employer requires that the employee is examined by a medical practitioner of their choice, the employer shall cover the costs of such examination including transport.
Granting an employee sick leave does not exempt them from claiming benefits under the Workers Compensation Act.

What can an employee do where the employer denies them leave?

Where the employer rejects an employer’s request for leave as stated above, the employer is supposed to notify the employee of the rejection.
An employee who is dissatisfied with the employer’s decision may seek a review of the decision through the offices within the institution
Where the employee fails to get assistance within the institution, they can file a complaint to the Labour Officer at the District. If the matter isn’t resolved at the Labour office, it may be referred to the Industrial Court.