Businesses could be heading for trouble over the festive season if they haven’t organised employees’ holiday entitlement correctly, according to Croner, a provider of workplace information and consultancy service, part of Wolters Kluwer. Croner’s employment advisory service has received a number of enquiries over recent weeks from employers unsure about holiday entitlement over the Christmas break.
The most common queries include whether companies can force employees to take their holiday entitlement over the Christmas break and, if offices are opening, how employers decide who has time off.
‘Companies vary in their plans for the festive period with many shutting completely and some staying open but with fewer staff,’ says Gillian Dowling, employment technical consultant at Croner. ‘It is important to think about arrangements far enough in advance to avoid any confusion and so that employees can make plans. Problems can arise if employers decide to close the office at the last minute, as some employees may not have the necessary holiday entitlement remaining and businesses can be left out of pocket.’
To help employers plan for next year, Croner has released answers some of its most frequent festive holiday queries:
Here are the basics…
The statutory minimum holiday entitlement is set out in the Working Time Regulations 1998 and is expressed in terms of 5.6 weeks’ annual leave. If a worker works a 5-day week, this means 28 days’ holiday per year. Even if a worker happens to work more than 5 days a week, the statutory entitlement is still capped at 28 days, although employers can give more than the 28 days’ leave entitlement, if they choose to do so.
‘But we always get the time off!’
Apart from the statutory minimum holiday entitlement, there is no general right for a worker to have bank or public holidays off work. It is up to each employer how the time off for these days is given, which depends on the type of organisation and the needs of the business. So whether an employee can take the bank holidays off over the Christmas period will depend on their contractual terms. If there is no express contractual term about bank holidays or time off between Christmas and New Year then this may be implied by custom and practice. So if the employer has consistently given staff time off on public holidays without exception, then it may be reasonable for them to expect this again.
‘Can we make the employees take time off?’
Over the last couple of years employers have taken advantage of Reg. 15 of the Working Time Regulations 1998, which enables an employer to make a worker take leave, as long as the right amount of notice is given beforehand. In the absence of any contractual terms, an employer needs to give notice that is twice the period of leave requested. Some employers do this in order to close the office over Christmas and New Year or other quiet periods when work is traditionally in short supply. This can be helpful to plan operationally but cannot always be relied on for last minute closures. Reg.15 is dependant on employees having the right amount of holiday remaining. If they haven’t and the employer insists on closing, employers may be left having to pay staff full pay for the period of closure, unless they have a lay-off clause in the contract.
First come, first served!
It is recommended that employers who do need some staff cover over the Christmas and New Year period should grant holiday requests on a “first come, first served” basis. This should be the same way of operating for other popular times off work. Under the Working Time Regulations, an employer has the right to refuse the request for leave, particularly if the leave would cause operational difficulties. The employer has to give the same amount of notice to refuse the request, as the amount of leave requested. These notice requirements to request and to refuse leave, can be varied by separate contractual terms which may establish rules regarding when leave may or may not be taken. Any such rules must be clearly notified to all employees.
‘Everyone gets double time, don’t they?’
If a worker works on a bank or public holiday, there is no general statutory right to enhanced rates of pay such as overtime, time and a half, or double time. It can just be a normal working day with normal pay. However, many industries will offer enhanced rates of pay for working antisocial hours which may be for historical or traditional reasons and may also have been agreed with unions and set out in collective agreements. Employers must be careful to ensure that if the public or bank holiday worked forms part of the basic statutory holiday entitlement the worker is provided with alternative holiday during that holiday year.