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Employment Law: Christmas and workplace issues Q&A (Part 1)

View profile for Chris Amys
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Q: Does an employee have the right to take Christmas Day, Boxing Day or New Year’s Day as holiday?

Over the winter months, there are three bank holidays, which are Christmas Day (Monday 25th December 2017), Boxing Day (Tuesday 26th December 2017) and New Year’s Day (Monday 1st January 2018). Employees are not automatically entitled to have any of these days off work unless an employee’s Contract of Employment states they do.

Employees are entitled to 5.6 weeks holiday per annum as a minimum, although some employers provide their employees with more holiday entitlement. However, employees are not automatically entitled to take holiday during the Christmas holidays, and therefore an employer can insist on its employees to work on Christmas Day, Boxing Day and New Year’s Day, providing that they permit employees to take at least 5.6 weeks holiday during the company’s holiday year.

Q: Is an employee entitled to holiday over Christmas?

Employees will be requesting time off work during the Christmas period for a number of reasons, such as meeting family and friends, or for religious reasons such as attending Christmas Church services.

A Staff Handbook should provide the processes and procedures for employees to follow when requesting time off work, which should be no different over the Christmas period compared to the rest of the year.

However, as with summer holidays, employers may be inundated with holiday requests, to the extent that the business may have insufficient staff to cover the Christmas period.

Therefore employers may implement a number of rules, either expressly or through custom and practice such as a Christmas shutdown, nominating particular dates when employees should take holiday, limiting the maximum amount of holiday during the Christmas period, and limiting the maximum number of employees permitted off work at any given time.

Q: What happens if an employee is off work due to a cold or flu during Christmas?

If an employee is off work for a genuine reason, such as a cold or flu, an employer’s Sickness and Absence policy will apply. A reasonable employer should apply the policy fairly and consistently to all employees to avoid any potential discrimination claim.

There are often occasions where an employer may suspect an employee is abusing the system and falsely claiming they are unable to work. It may be difficult for an employer to prove the claims of the employee, and may also be accused of inconsistent treatment if the employer only takes action against some employees, but not others.

Nevertheless, an employer could take the decision to implement its Disciplinary Procedure if it has concerns over an employee’s attendance record or over the reasons given for their absence.

Q: How should an employer address issues about an employee’s wellbeing?

Over the Christmas period, an employee’s wellbeing may be affected by the exacerbation of stress and/or depression. This may be for a number of reasons, but it is paramount for employers to identify any employee whose wellbeing is affected, as it is rare for an employee to openly talk about any personal problems they are experiencing.

For employers, it is not easy for them to approach an employee who may be affected, and therefore it may be appropriate for them to arrange an opportunity to talk informally about their feelings.

If you have any questions, please don't hesitate to get in touch with Sally Morris at sally.morris@mfgsolicitors.com or on 01905 610410.

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