Competing requests for Christmas holiday?

 

Christmas is a time when many employees want to take their annual leave, whether it is for religious or childcare reasons or simply so that they can indulge in mince pies and sale shopping. How should you deal with the barrage of holiday requests from employees all wanting the same period off work?

The Legal Position

Firstly, there is no right to take annual leave on a public holiday (for example, on Christmas Day, Boxing Day or New Year’s Day), unless the employer has created a contractual right to do so. Secondly, just because a holiday request is made, it does not necessarily follow that it must be accepted by the employer.

That said, there can be complications. If the employee is requesting the day off for religious observance, they might allege that they have been indirectly discriminated against if their request is refused. The same argument could apply to a female employee who submit a holiday request for childcare reasons. To avoid such a claim succeeding, an employer must show that its decision to refuse the holiday request is justified. Depending on the circumstances, that could be difficult.

To successfully prove justification, the employer must show that its refusal was “a proportionate means of achieving a legitimate aim”. The employer will probably be able to demonstrate that its aim was to have sufficient numbers of staff at work to allow the smooth running of its business. Showing that the decision is proportionate is usually the greater challenge because if someone else is willing to work that day instead or the employer could cope with less staff being present at work, the decision to refuse the employee’s holiday request would not be proportionate.

What we advise

If you are lucky enough to have sufficient numbers of employees who are willing to work over the festive period, you will not have a problem. However, if there are insufficient numbers, you will need to consider not only the legal position set out above but also how you can achieve good employee relations, as resentment is likely to build quickly if the same employees are compelled to work the Christmas period year after year.

The solution is to think of a way in which a fair and non-discriminatory system can be used to select who gets the time off and who does not. That could be, for example, a rota system (so that those whose request is refused this year will be permitted to take time off next year) or a ballot in which you select at random to see who gets the day off. Having a clear policy communicated to your workforce in advance can assist with avoiding future headaches when dealing with competing holiday requests.

Points to Remember

  • There is generally no right for an employee to dictate when they take their annual leave entitlement.
  • If an employer wishes to refuse a holiday request, it must usually serve notice of at least as many calendar days as the proposed holiday (for example, at least 5 days’ notice if the employee wishes to take 5 days’ holiday).
  • The employer must show that its decision to make a particular employee work over the Christmas period is a proportionate means of achieving a legitimate aim in order to justify any effects of indirect discrimination.
  • To minimise disputes, have a clear policy in place detailing how you will deal with the situation in the event that multiple holiday requests for the same period of time are received and not all can be accommodated.

A Word of Warning

Getting it wrong can be expensive in terms of awards of compensation (if an employee was to bring a successful discrimination claim) but it can also damage the employees’ goodwill in the ongoing employment relationship. As such, if you don’t already have clear policies in place what better time to implement them than in the New Year. Click here for our recommendation on top New Year’s resolutions for employers.

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This guide is for general information and interest only and should not be relied upon as providing specific legal advice.  If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.