Employment holiday query

[Amelia1909]

Hi all can anyone help with this..
If a company has been giving paid leave (in addition to 28 days statutory) over a Christmas to new year shutdown (usually between 3-5 days) can they remove it and say holiday must now be booked over Christmas out of the 28 days entitlement?
Would be interested in any views?
Would the company need to give additional holiday of say 3_4 days to compensate for this change (is it a custom and practice or implied term?) Or can they just give notice of this change and enforce it?
Thanks hugely in advance

Yes, they can enforce it. I work for a company where normal holiday is 28 days, and because we close over Christmas those tree working days between Christmas and new year are compulsory holiday days out of our allowance.

Actually I disagree with the first poster to respond. Whether they can make the change depends on how long people have been given the additional holiday over the Christmas shut down. If something happens for long enough it becomes part of the employment contract through custom and practice and what happens elsewhere doesn’t matter a jot - I usually have fun with this stuff when doing TUPE work

If it is something like the odd person has not booked because of an oversight for the last couple of years then that is very different to all employees getting the extra holiday since anyone can remember.

Is this a change effecting all employees op? And how long has it been the case that employees get this extra as a bonus?

There is a potential issue with detriment to part time workers if they are not getting the extra because of the way the dates fall but that may be a separate issue.

Thank you both for your input. The 'gifting' of extra paid leave over Christmas has happened for at least 5 years which is why I also think it has become an implied term too.

I think to withdraw it with no compensation (i.e extra days holiday entitlement - perhaps an average of the days they gained over the last 5 years) is leaving them open to employees claiming an unlawful change to their t's and C's.. but I'm not 100% sure?! Great point about p/t workers too. Any more thoughts?!

Wouldn’t there need to be a consultation as it is a change to t&c?

It's not stated in t's and C's but has been done for a number of years so I think it becomes part of t's and c's?

Your leave should be in your contract.... but regardless, it is an established way or working so I would contact ACAS for advice

I agree I would call ACAS

If it’s been the same for everyone for the last 5 years then it would seem to have become contractual through custom and practice. Therefore any change would be a change of contract and cannot just be done unilaterally by the employer. The employer must enter into a formal consultation and gain agreement from each employee unless there is a collective bargaining agreement in place. If there is a collective bargaining agreement then the employer negotiates with the recognised Union on behalf of all employees (union members or not). What you have said in your posts suggests the terms are worse so there is a real risk to the employer if they persist in imposing the changes. As well as breach of contract claims they could open themselves up to Constructive Dismissal claims if the breach is deemed to be so serious that there has been a fundamental breach of the mutual trust and confidence and employees quit.

If the employer insists on imposing the change without consultation or agreement then the first step is to raise a grievance with the employer. If you do not take action and formally register your objection you will be deemed to have accepted the changes. Actually the first step is always to try to resolve things informally but as a cohort of employees you may want to raise a collective grievance if it is presented as a done deal by the employer. I don’t know enough about the specifics to advise which option would be best.

In addition to raising the grievance you should write that while you do not accept the new term, you will continue working under protest. This means you don’t have to resign or stop working (definitely don’t do the latter as it’s a gross breach of contract much worse than the change to holiday) but neither have you accepted the changes. This is a short term solution while you fight the change. Then if you cannot agree terms with your employer you will have to continue to exhaust the grievance process and then go to ACAS and then tribunal if you do not accept the changes. The timescales are important and claims cannot be brought after the time limits.

What does the employer say about the change and why are they doing it? Has your organisation recently been transferred or merged or otherwise taken over? Do you have an HR department and do they know the management are trying to do this? Often people do things (especially new people wanting to make their mark) without fully understanding the law or consulting with a professional (including their own HR departments!) and once they realise it’s not as straightforward as they thought they back down.

This link from Citizens Advice Bureau is excellent and has links to template letters www.citizensadvice.org.uk/work/rights-at-work/basic-rights-and-contracts/changes-to-employment-contracts-overview/

I should also say that this could well just be an admin cock up or a misunderstanding. If they just want people to book out the leave over the Christmas shut down that’s fine but they must make sure the allowances reflect the current contractual terms.

If, as an example, a full time employee currently gets 5.6 weeks including bank holidays (which works out at 28 days on their 5 day a week pattern) plus the extra days between Christmas and New Year then each employee should have their total annual leave confirmed at the beginning of each holiday year. This is because the total annual leave will vary each year depending on when the bank holidays falls. Some years it will be 31 days, others 32 and some 33 days. It would be easier to just leave things as they are if they are not actually taking away holiday.

It may be that they are insisting on doing this because they want to make sure part time employees are not being treated less favourably and are getting their entitlement pro rata’d? However this seems an overly complicated and heavy handed way of doing it.

What can i say Ivorbiggor (have i got that right?!) an incredibly detailed and helpful reply. Thank you so much.
I have a bit more info now - the company (privately owned) has grown over the 10 years it has been operating and now has 25 staff. Every year they have closed between Christmas and New year and given employees paid leave that they don't have to take from their holiday entitlement. They do actually receive orders between Christmas and New year and reading between the lines, the owners feel they are losing business during a quiet time of the year anyway, by continuing the shut down.
So they have said they are considering stopping the shutdown and want to remove the practice of gifting paid leave - staff now have to use annual leave if they don't want to work between Christmas and New year. I have suggested it's not as simple as just enforcing that change despite their being a genuine business reason for the change - but i am unsure of my ground. I suspect they would have to offer staff extra annual leave as compensation (3-4 days each?) so there is no loss? Thank you so much your help it is invaluable to me. They are not trying to be unfair - as you say i don't think they realise you can't just take something away like this. There is no HR department as such.

Ok i got it slightly wrong and see its Ivorbiggun - ha ha penny has dropped re the name.

In that case I suggest they get an expert in before they make a mess of things. A small outlay on good quality advice can save a whole world of time and money later. There are plenty of people like me about working to support small and medium sized businesses with HR matters.

It sounds like there’s a valid business reason to make the change so they now need to do it within the law. I am assuming there is no collective bargaining agreement in place. The first thing to do would be to change the contractual terms regarding holiday and Christmas shut down for all new employees who join the business to one that suits the needs of the business.

The next step is to begin the process to vary the contracts for existing employees. ACAS have an excellent guide at www.acas.org.uk/index.aspx?articleid=816 but in a nutshell one would inform all current employees of the proposed changes, open a consultation and agree the new term/s. Then what is agreed at the end of the consultation period becomes the new terms and a letter of variation is sent to each employee. It’s important to recognise this is a consultantion not a negotiation, so a sensible offer should be on the table and not leave employees worse off than they were before. Sometimes there are genuine reasons for employers to offer worse terms to avoid redundancies or going out of business but this would not seem to apply here.

I would think as a bare minimum offering to uplift everyone’s official holiday entitlement to what it would have been including the Christmas shut down is important. How this is calculated would depend but it should be clearly laid out and with a justifiable reason if you want quick agreement. It may well also be the case that they don’t need everyone working at full capacity during the festive period, so they decide as part of the deal to agree that anybody who doesn’t want to work the Christmas period does not have to do so, or does not have to do so for a protected period (say 2 years). Bearing in mind the status quo is that nobody currently works during the period and any new employees wouldn’t have this right so this may be the most sensible option. Obviously a proper analysis of business needs should be undertaken prior to deciding and going to employees.

Get the proposal right in the first place and it will avoid upset (with the consequential loss of productivity) and save hours of management time.

What this employer is suggesting is not that radical. They way they implement the changes will make the difference.