Is it nearly Ho Ho Ho-liday time?
In the words of Michael Buble, it’s beginning to look a lot like Christmas. Yes, the holly jolly festive period is just around the corner and for many businesses, the run up to Christmas is the busiest, most stressful yet lucrative time of the year. While Christmas tree suppliers, Santa impersonators and mince pie bakers will likely take most of their orders during the yuletide season, industries such as retail, hospitality and beauty are expected to also see a sharp spike in demand for their services. For other industries and sectors, however, it can be a quieter, calmer time of year, with some organisations temporarily closing between Christmas and New Year.
For employers, the holiday period can present a few headaches (even before the Christmas party takes place). In this blog, we consider what businesses can do when faced with competing holiday requests from staff and whether employers can require staff to take leave at set times of the year.
Quick recap – holiday entitlement
Most workers in the UK have a right to a minimum of 5.6 weeks’ paid holiday in each annual leave year. This amounts to 28 days for those who work 5 days per week (and a part-time worker is entitled to a pro-rata entitlement). Many workers receive additional holiday rights under their contracts of employment.
A worker must give notice if they wish to take statutory holiday. This should be twice as many days in advance of the first day as the number of days or part-days to which the notice relates. For example, if the worker wants to take two days’ holiday, they must give at least four days’ notice.
What can we do if it isn’t possible to grant all holiday requests?
Christmas is traditionally a time when many workers will be looking forward to spending some quality time at home with their friends and family and enjoying an extended break from work. Many employers will likely see a spike in demand for annual leave requests at this time, meaning that they will face the delicate task of balancing competing holiday requests with the operational needs of the business.
If it isn’t possible to grant all of the requests, you can reject some or all of them – provided that you don’t ultimately prevent a worker from taking their statutory leave over the course of their holiday year. Employers are able to determine the rules regarding when leave can be taken.
If you decide to refuse a holiday request, you should have a valid business reason. For example, if you operate in an industry such as retail or hospitality, you may decide to implement a blanket ban, preventing staff from taking holidays during this time to cope with increased customer demand. If you choose to grant some requests and reject others, there should be a proper, rational basis for deciding which requests are granted (perhaps “first come first served”).
If a holiday request is refused, counter-notice should be given to the worker advising that the worker’s request cannot be granted. This must be given at least as many calendar days before the date on which leave is due to start as the number of days being refused. For example, if the worker has requested five days leave and you wish to reject three days of the request, you must give notice at least three calendar days before the date on which the leave was due to start. In such circumstances, it can be helpful to suggest alternative dates for the leave to be taken. Clearly it will be helpful if an employer gives as much notice as possible that a request is being denied.
Employers should ensure that they act in good faith when considering holiday requests. Consistently rejecting a worker’s holiday request could damage employee relations and even result in a grievance or legal dispute. Caution should be exercised if an employee asks to take annual leave for religious reasons.
Can we force staff to take holiday?
Yes. Requiring employees to take holiday on specified dates (such as over a Christmas shut down) is not unlawful from a working time perspective, as long as the employer gives the required notice of at least twice the length of the period of leave that the worker is being ordered to take. For example, if the employer requires the worker to take 5 days’ leave, it must give at least 10 calendar days’ notice. There is no explicit requirements about the form that this notice must take. Employers could distribute an email about this or include this information within contracts of employment.
However, requiring non-Christian staff to use their annual leave during the Christmas period (which has no religious significance to them) could present a risk of indirect religious discrimination. This is particularly so if, as a consequence, they are not able to take time off during a time that is significant in their religion. Arguably, such a requirement could amount to a provision, criterion or practice (PCP) that puts or would put persons of their religion or belief (or lack of religion or belief) at a particular disadvantage when compared to other persons. If this is a situation you are considering, it is sensible to consider whether this requirement can be justified as a proportionate means of achieving a legitimate aim. For example, is it possible to justify requiring employees to take holiday during the office closure on grounds of reduced customer need or could you agree different working arrangements to enable non-Christian workers to take sufficient time off during their religious festivals?
Do we have to let staff take bank holidays?
Four bank holidays span the festive period this year in Scotland: Christmas Day, Boxing Day, New Year’s Day and 2 January 2024. Workers often believe that they have the statutory right to paid time off work on these days. However, that isn’t necessarily the case. Instead, this will depend on what their contract of employment says. Workers can be required to work bank holidays if their contract allows for that, provided they still receive a minimum of 5.6 weeks’ paid holiday within the leave year.
If a bank holiday falls on a day that a worker usually works, and the workplace is shut or business stops on that day, you can require the worker to take it as part of their holiday entitlement as long as this is either set out in their contract of employment, or you have given notice (as above) that the day needs to be taken as part of their holiday entitlement. If the worker does not want to take the day off, they could ask you if they could work the bank holiday and take another day off in lieu instead. You do not have to agree to this proposal, but if it can be accommodated, you may wish to consider it.
If a bank holiday falls on a day that a worker does not usually work, you cannot make them use that day as part of their holiday entitlement.
If you are an employer and would like our team of expert employment lawyers to review your standard employment contact, or discuss forthcoming holiday arrangements, please do not hesitate to contact us.
This blog contains general information only and does not constitute legal or other professional advice.
Lesley Grant, Associate: ljg@bto.co.uk / 0141 221 8012 / Connect with Lesley on LinkedIn
Rebecca McGregor, Trainee Solicitor: rmc@bto.co.uk / 0141 221 8012 / Connect with Rebecca on LinkedIn
