This time of year people may want to spend some time with family and loved ones between Christmas and New Year. However, this can present a tricky time for employers who try to juggle the requirements of their business with the needs and wishes of employees.
Who can decide when an employee should take leave?
The working time regulations 1998 provide that every worker is entitled to a minimum number of paid holiday days each year – presently 28 days including bank holidays for full-time employees, pro rata for part-time employees. However, the regulations also provide that an employer can specify when an employee can take their annual leave but must not prevent them from taking their annual leave at all.
Therefore, an employee has no legal right under the regulations to insist an employer grants their leave days on their preferred days. If an employee is seeking to make a request for annual leave then, in the absence of any other agreement between employee and employer, the employee must give notice of at least twice the period of the leave requested. If the employer intends to refuse the leave they should do so within the first half of the notice period given by the employee.
Some employers decide to close their businesses during the festive period between Christmas and new year (Christmas shutdown) on the basis that there will be a significantly reduced demand for the service during this time. Usually, employers will direct their employees to reserve enough of their annual leave entitlement to cover this period. Employers are entitled to do this under the working time regulations.
Is there a solution?
For those employers who do not close their business during the festive period they are often faced with competing requests for annual leave. So what can employers and employees do to resolve the problem? Some practical suggestions are set out below:
- Allowing employees to share time in the office during the festive period, for example one employee covers one day, another employee covers the next day, and so on
- If there is likely to be a significant downturn in work during the period, the employer could consider allowing the business to operate on a skeleton staff as suggested above or to let employees leave work early
- Employers should consider if employees could work from home or, if business is likely to be slow, employers could even consider allowing employees to be on call for work by telephone or email.
What if emergency time off is needed over the Christmas period?
In extreme cases where an employee has dependants and is unexpectedly without care for those dependants then the employee may need to request dependant leave. Dependants are widely defined and include husbands, wives, partners, children, anyone who lives in your household and depends on you or even an elderly neighbour who depends on the employee for assistance.
However, dependant leave is only designed to be used in emergency situations such as the dependant falls ill or there is a breakdown in care arrangements, such as a nursery or school closing unexpectedly or a childminder being ill or failing to arrive. Although there is no specified time limit for dependant leave, it should only be for a period of time which is reasonable to allow the employee to make alternative arrangements. It should not be used as an alternative to requesting annual leave and is unpaid.
This is not intended as legal advice on individual cases. With thanks to Jasmine van Loggerenberg, a solicitor specialising in employment law at Russell, Jones and Walker solicitors.
