April 1

Allocating paid time off work . . .

With an extra bank holiday in 2012 employers should be planning how to deal with holiday requests.

Last year we had the Royal Wedding. This year we have another extra bank holiday to celebrate the Queen’s Diamond Jubilee on Tuesday 5 June 2012. How should employers deal with this and more general questions surrounding holidays from work?

Are all staff entitled to the day off on 5 June 2012? 
Not necessarily and some employers will have to keep their businesses running on that day. There is no statutory right to paid time off on bank and public holidays, although all workers are entitled to 5.6 weeks’ holiday each year. Employers need to check what the employment contract says. If it says employees are entitled to 25 days’ paid holiday plus all bank and public holidays they will be entitled to take the extra day and be paid for it. If it says 25 days’ holiday plus the usual bank and public holidays then they would not. If they wanted to take the extra day’s holiday they would have to request a day’s holiday in the usual way.

What about part-timers?
 Some employers give paid time off for public holidays to part-timers who would otherwise work on the day the holiday falls. That approach obviously works in favour of those part-timers who work Mondays since most public holidays occur on that day, but disadvantages those who do not. The better option is to give part-timers pro-rata entitlement to holidays and public holidays so those workers are not treated less favourably than full-time staff. So, if full-time staff are entitled to 25 days, plus all public holidays, someone who works 50% of full-time hours will be entitled to 12.5 days plus four of the public holidays (4.5 in 2011 and 2012).

This may mean that employees who work Mondays will not be entitled to be paid for all the public holidays they take off and should be given the option of treating the extra days as unpaid leave or taking it out of their remaining holiday entitlement. Conversely, those who do not work on Mondays may have more pro-rata public holiday entitlement than the number of public holidays which fall on their normal working days and they will have to take those off at other times. Employers should try to be consistent in the way they treat all part-time staff.

Is ‘first come first served’ the best way to deal with holiday requests? 
One of the difficulties with this approach is that it is not always clear whose request came in first. Another problem is that some employees may put in a request so early, as a matter of course, that no one else stands a chance of getting in first. Generally speaking, ‘first come first served’ works well, but it might be better for staff to take turns if there is a particular holiday period that tends to be popular, for example, the school holidays or the days between Christmas and New Year, or around the Easter break.

Are compulsory shutdowns a good alternative?
 Possibly, however, before requiring everyone to take leave, employers should consider whether this creates a particular disadvantage for workers sharing a protected characteristic (such as sex, religion or belief) who may need to take their annual leave at other times, for example, during school holidays or religious festivals. If an employee brought an indirect discrimination claim along these lines, the employer would need to show that the shutdown was justified – in other words a proportionate means of achieving a legitimate aim. If the employer is in a sector which traditionally shuts down over Christmas – for example the construction industry – they may be able to argue that there is an operational need for them to have a shutdown because there is no work to do and that this amounts to a legitimate aim. However, they would need to show they had considered the needs of their workers in assessing whether the shutdown was a proportionate means of achieving that aim. The other point to bear in mind is that if staff were previously free to choose when they took holiday, requiring them to take it at a particular time is likely to amount to a change in their terms of employment. If the employees’ consent cannot be obtained there may be the risk of claims for breach of contract or constructive unfair dismissal.