Query about Employment and working over the holiday period

[IWantWine]

My daughter has been told she must work on Christmas Eve, Boxing Day, New Years Eve and New Years Day.

She does not want to do this, obviously she wants some time off to celebrate but her manager wont allow this. Can anybody tell me if this is acceptable?

She is also being made to work on her boyfriends 21st birthday, which she does not want to do. She got her shift covered by another employee but her manager wont allow this. Again, is this okay or is there anything my daughter can do without jeopardising her job?

Thanks for your help.

If your daughter works full time she is entitled to 28 days holiday a year. For most people that is 20 days plus 8 days of public holidays but some people have to work on public holidays. Her employer is not required to give her time off on public holidays nor do they have to agree to her holiday requests. They cannot, however, leave her in the position where it is impossible for her to take the statutory 28 days in a year.

So I'm afraid your daughter's employer is entitled to tell her she must work on the Christmas/New Year public holidays and her boyfriend's birthday. It does, of course, make them look mean but that is another matter.

prh - something I have always wondered. Discrimination aside, is there any legal obligation for an employer to treat an employee fairly? Is that all just a grievance issue, and is there a legal framework for grievances?

Thanks for the reply. Not sure if it makes a difference but she is in permanent employment on a part time basis, her contract is for only one hour a week.

IWantWine - The statutory holiday entitlement is actually 5.6 weeks which works out at 28 days. For someone employed part time it is 5.6 times their normal working week. Note that this reflects the hours she actually works, not just her contracted hours. If she works on shifts her entitlement is calculated using the average of her shifts over a 12 week period.

StealthPolarBear - Define fair! There are clearly many different views as to what is fair in a work environment. For example, an employer is entitled to dock pay if you have a day off work to look after a sick child but some people consider that unfair. I would agree that this is a grievance issue. There is no legal framework as such but there is an ACAS code for discipline and grievances. If an employer ignores this it will count against them should the matter end up at an employment tribunal.

that makes sense, thanks :o

If she works on shifts her entitlement is calculated using the average of her shifts over a 12 week period.

That's not right - annual leave is calculated over the whole year. People on a zero hours contract (or as in this case one hour) usually accrue holiday on the basis of a percentage of hours worked - the statutory minimum is 12.07%

I stand by my answer.

You are correct that in the case of irregular working patterns the holiday is 12.07% of the hours worked. However, for shift workers the average of shifts over a 12 week period is used. See here.

I don't see anything there about 12 weeks? And what would that mean anyway - if you work 5 days a week from January to August would you be entitled to 5.6 weeks x 5 days holiday for the year but then from September to November you only work 1 day a week so you are now only entitled to 5.6 days in total for the year???

I think you are confusing this with the rate of pay for leave taken, which (in the absence of a normal weekly rate) is indeed calculated over the previous 12 weeks.

Sigh...

Try scrolling to the bottom of the page at the link and reading the section on shift workers.

The point is that shift workers are expected to have a regular work pattern. If they have an irregular pattern as you suggest the 12.07% rule would be used. If they have a regular pattern you average out their hours over 12 weeks in exactly the same way that a week's pay for such a worker if paid hourly would be based on their average hours over the previous 12 weeks. This derives from the Employment Rights Act 1996.

OK, it does contain the words "If you are a shift worker your leave is calculated by using an average of your shifts over a 12 week period."

But the example that follows has no relation to 12 weeks:

"For example, if you always work four 12 hour shifts, followed by four days off (the ?continental? shift pattern) then the average working week is three-and-a-half 12 hour shifts. You would be entitled to 19.6 shifts of 12 hours as annual leave a year:

5.6 weeks x 3.5 shifts = 19.6 12 hour shifts"

I can't find the relevant section of the Employment Rights Act 1996 - the calculation of a weeks pay according to the 12 week rule is there of course (in general in S222), but nothing about the minimum amount of annual leave - I thought this was entirely within the Working Time Regulations?

Missed a bit out of that last message so...

OK, it does contain the words "If you are a shift worker your leave is calculated by using an average of your shifts over a 12 week period."

But the example that follows has no relation to 12 weeks, it (correctly) averages out the shifts over an 8 day period (if you did work this out over 12 weeks the answer would be different depending on whether the 12 weeks started on the first day of work - 44 days worked out of 84 - or the first day of non-work - 40 days worked out of 84).

"For example, if you always work four 12 hour shifts, followed by four days off (the ?continental? shift pattern) then the average working week is three-and-a-half 12 hour shifts. You would be entitled to 19.6 shifts of 12 hours as annual leave a year:

5.6 weeks x 3.5 shifts = 19.6 12 hour shifts"

I can't find a relevant section of the Employment Rights Act 1996 - the calculation of a weeks pay according to the 12 week rule is there of course (in general in S222), but nothing about the minimum amount of annual leave - I thought this was entirely within the Working Time Regulations?

Put the Employment Rights Act together with the Working Time Regulations and you are there. The point is that the Working Time Regulations relate to how much paid holiday you are allowed.

Regulation 16 of the Working Time Regulations says that "a worker is entitled to be paid at the rate of a week's pay in respect of each week of leave" and that "sections 221 to 224 of the 1996 Act (i.e. the Employment Rights Act) shall apply for the purpose of determining the amount of a week's pay".

The employer is therefore entitled to pay in accordance with the 12 weeks rule. If, at the time the holiday is taken, one week's pay works out at 4 days pay (due to the work pattern in the preceding 12 weeks) then the employee is only really entitled to 4 days paid leave. That doesn't stop them from taking a full week if the employer agrees but they will only be paid for 4 days.

There have been cases in the Employment Appeals Tribunal that have confirmed this is the correct interpretation.

I don't quite get what you are all discussing here - holiday is up to the managers discretion, especially in retail - is your daughter in retail? my DH has a week left of holiday, that we wanted him to use between xmas and new year, manager has said he needs him there, end of. no holiday (he has to take it in january).

He has to work the tuesday bank holiday, no option there even though he doesn't usually work tuesdays.

You say her work is 1hour a week - what does she actually work each week? with a 1hr contract, she'll get a tiny bit of holiday each year.

Retail sucks.

Op, if she has a contract for one hour per week that is all she is contracted to work per week. She does not have to work more than this unless her contract says so.

However, it may be wise to think about the fall out from this if she refuses to work. It sounds to me like her employer might be using a one hour contract to avoid giving her the benefits for the hours she actually works (annual leave etc).

How many hours a week does she normally work and how long has she been employed there?

I think we are at cross-purposes here.

Your interpretation is exactly correct in arriving at the (minimum) amount that a worker must be paid during annual leave as written in statute and confirmed by case law.

However this does not shed any light on how much (paid) annual leave a worker must be given.

I am saying that this must be a minimum of 5.6 weeks. Unfortunately, statute does not define what '5.6 weeks' means but practice and case law has established a number of ways of determining this: none of these ways refers to 12 weeks. For a shift worker working 4 days out of 8 i.e. 3.5 days a week they are entitled to a minimum of 19.6 days a year AL.

I don't quite get what you are all discussing here - holiday is up to the managers discretion, especially in retail - is your daughter in retail?

Sorry, this has turned into a bit of a hijack. You are absolutely right MotherPanda, providing the contract says so (and most contracts for retail workers do), and the manager does not act unreasonably, the OP's daughter cannot insist that she takes annual leave at any particular time.

However, neither can the employer insist that she works at any time other than her contracted hour each week. If she refuses to do so and believes that she is treated unfairly as a result, she can raise a grievance.

Hi and thanks for all your comments.

Yes she is in retail. They are not quibbling about holidays exactly, only that she cannot take any time off over the holiday period apart from Christmas Day, when the store is closed.

It just seems a bit harsh that she wont have much opportunity to celebrate the holiday, it will turn out just like any other working day :(

Will she be paid any extra for the bank holidays/ get a day in lieu? I'm not sure if this is the law or just common decency. It is very harsh - but if the manager won't even consider letting somebody else cover shifts then your daughter has two choices:

Leave her job (giving a week or two notice, so as not to screw up references) and find a new job in the new year (risky)

Or work the days expected.

I'm afraid there's no protection in the law. However, if she is the only one being asked to work all these days, and other staff are not then she could file for age discrimination/ raise a grievance for bullying etc - but It doesn't sound like that to me.

Yes there is protection in law. Please see my previous post.

MrAnchovy - Sorry to return to the hijack but I am not entirely convinced we are at cross purposes and, as I say, this HAS been clarified by the Employment Appeals Tribunal.

Imagine someone joins a company. In the first 12 weeks they work a shift pattern which gives them 3 days one week, 5 days the next. How much paid holiday are they entitled to after 12 weeks? They have so far accumulated 5.6 12 / 52 weeks paid holiday, which is 1.29 weeks. But what do we mean by 1.29 weeks? That may sound like almost 6.5 days but in this case it isn't as their working week has averaged 4 days over the last 12 weeks. They are entitled to 4 1.29 days paid holiday, which is 5.17 days. If they take one of their 5 day weeks off they are therefore actually taking 1.25 weeks holiday and have used almost all their accrued holiday entitlement (although they will, of course, have accrued a little bit more during their holiday).

MotherPanda - There is no legal requirement for an employer to give additional pay or time off in lieu for public holidays. However, if the employee's contract provides for additional pay or time off in lieu that must be honoured.

KateFrothers - Custom and practice may mean the OP's daughter is contracted to more than one hour per week whatever it says in her contract of employment. She may well not have the protection in law you suggest. Even if she does, going down this route is likely to prove career limiting.

Do you mean implied terms? Custom and practice would apply to all employees and it could be that this employee is the only one being ask to do extra or work all public holidays.

We need more information from the OP to be able to advise properly which is why I asked about usual hours and how long she'd been worked there.

OK prh47bridge, let's say that same employee doesn't in fact take any holiday until they have been working for 10 months. They then take 4 weeks off, which is 16 days. What is their statutory annual leave entitlement for the remaining 4 weeks of the year?

By my calculations, they get 4 days x 5.6 weeks a year - 22.4 days. They therefore have 6.4 days remaining to take. This entitlement has been calculated without reference to any 12 week period.

How do you calculate the entitlement?

(for ease of calculation, for 10 months read 44 weeks)

I would agree with your calculation for the full year.

However, your calculation does reference the 12 week period even though you don't realise it. That is how the average of 4 days per week is calculated. A more complex shift pattern may have made that more obvious.

In most circumstances you don't need to really think about the 12 week period to work it out - certainly not with a simple alternating week pattern such as in this example. In some circumstances you do.

However, your calculation does reference the 12 week period even though you don't realise it. That is how the average of 4 days per week is calculated.

No it doesn't, it is calculated over the 2 week shift period. Of course 12 is divisible by 2 so it makes no difference in this example which you chose.

Can we go back to the example on the Directgov site (4 days on, 4 days off) which is sufficiently complex to show the difference? As I stated before, this calculation has no relation to 12 weeks, it (correctly) averages out the shifts over an 8 day period: 4 / 8 x 7 = 3.5 days per week. If you did work it out over 12 weeks the answer would be different depending on whether the 12 weeks started on the first day of work - 44 days worked out of 84 = 3 2/3 days per week - or the first day of non-work - 40 days worked out of 84 = 3 1/3 days per week.