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The Caterer

Can I make staff work key holiday dates?

15 December 2010
Can I make staff work key holiday dates?

THE PROBLEM
I am struggling to get staff to volunteer to work Christmas Day and New Year's Day. Can I force staff to work key public holidays?

THE LAW All workers are entitled to at least 5.6 weeks' paid leave per year, which is 28 days for someone working a five-day week. This minimum entitlement can include the eight public and bank holidays recognised in England and Wales.

An employer may stipulate when a worker can take holidays and, importantly, there is no legal requirement for employers to allow workers time off on public holidays, such as Christmas Day and New Year's Day.

Staff may have a contractual right to time off on Christmas Day and New Year's Day depending on what their employment contracts say. If you force your staff to work when their contracts state that they do not have to work, there is a risk that they will resign and claim constructive unfair dismissal, arguing that the breach of contract is sufficiently serious to amount to dismissal.

Requiring staff to work on Christmas Day or other religious holidays may also be indirectly discriminatory under the Employment Equality (Religion or Belief) Regulations 2003. Indirect discrimination occurs where an employer applies a "provision, criterion or practice" that disadvantages those of a particular religion and cannot be justified as a "proportionate means of achieving a legitimate aim".

Employers are expected to accommodate religious beliefs where reasonable and practical.

EXPERT ADVICE
Forcing staff to do things that they don't want to do can have a negative effect on your business. Whether or not you have the legal right to insist will depend on the terms of the employment contracts with your staff.

Generally, employment contracts in the catering and hotel industry will not give staff the right to take time off during public and bank holidays when your business is at its busiest.

Your contracts are more likely to state that staff are required to work during these periods or that you reserve the right to request that staff work "as and when required depending on the needs of the business", perhaps with a day off in lieu.

If your staff are not coming forward to volunteer to work on Christmas Day and New Year's Day, then you might wish to consider incentivising them by, for example, offering increased rates of pay.

The best way of dealing with this is to speak directly to your staff about the need for some of them to work and listen to any objections which they may have. You should be particularly sensitive to objections made by those who are reluctant to work Christmas Day due to their religious views.

If you are still unable to get cover for shifts, you might wish to consider taking on temporary staff.

As a last resort, if you have to insist and they still refuse to work, then it might be appropriate to move to a disciplinary process.

CHECK LIST

â- Consider incentivising staff by paying extra for working on Christmas Day and New Year's Day.
â- Listen to any objections made, in particular by those who are objecting due to religious reasons.
â- Consider engaging temporary staff.

BEWARE! Make sure you take into consideration the different religious faiths of your staff at other times of the year. While Christian employees might be reluctant to work on Christmas Day, followers of other faiths might feel the same about working on one of their religious festivals or holidays.

If you are unable to allow staff time off during one of their religious holidays or festivals, ensure that you are able to objectively justify your decision.

CONTACT
Sarah Gudgin, solicitor, Boodle Hatfield
sgudgin@boodlehatfield.com

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