Many staff will want time off over Christmas, and it's not always possible to accommodate every request. So it's important to ensure you have a sensible system for deciding who gets to take holiday. Katee Dias explains
Christmas is a time when many employees want to take annual leave, whether it is for religious or childcare reasons or simply so that they can indulge in the festivities. How do you deal with the barrage of holiday requests from employees all wanting the same period off work?
First, 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. Second, 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 women who submit holiday requests 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 at what is often an exceptionally busy time. 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 fewer staff being present at work, the decision to refuse the employee's holiday request would not be proportionate.
EXPERT ADVICE 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, for example, be 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 help.
â- 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 five days' notice if the employee wishes to take five days' holiday).
â- 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.
â- To minimise disputes, have a clear policy in place detailing how you will deal with the situation if multiple holiday requests for the same period of time are received.
BEWARE Getting it wrong can be expensive (if an employee were to bring a successful discrimination claim) but it can also damage the employees' goodwill.
CONTACT Katee Dias is a solicitor â¨at Goodman Derrick LLP â¨firstname.lastname@example.org