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On Christmas Day in the morning (I’ll be at work!)

As you may have seen in our recent legal update, the Court of Appeal has held that an employer was entitled to insist that an employee worked on…

As you may have seen in our recent legal update, the Court of Appeal has held that an employer was entitled to insist that an employee worked on Sundays, despite their belief that this was a religious day of worship (Mba v London Borough of Merton).

As Christmas approaches, millions of employees across the UK will be looking forward to a break from their workplaces, particularly on Christmas Day.

But what about those organisations which have to keep their doors open over the festive period? Can they insist that employees work on Christmas Day, probably the most widely celebrated religious holiday of the year?

Contract

The starting point for any employer considering these questions should be the contract of employment. If it is an express term of an employee’s contract that they may be required to work Christmas Day (or any other public/religious holidays for that matter) due to the business needs, then a refusal to do so will potentially constitute a breach of contract.

It will not necessarily matter that those who hold certain religious beliefs (e.g. worshipping, not working on Christmas Day) will be disadvantaged by this policy. That is, of course, providing there is a genuine business requirement and the policy is a proportionate means of fulfilling that requirement.

The best approach is to keep matters simple: if a business needs an employee to work on Christmas Day then religious beliefs will have to take a back seat. Whilst clearly appropriate to consider a request for time off and what options are available, a detailed investigation into why employees want time off will only complicate matters unnecessarily.

A good example is hospital staff. There is a requirement for hospitals to have their patients cared for 24 hours per day, 365 day of the year. Therefore, requiring staff such as nurses and doctors to work on Christmas Day is likely to be a proportionate means of fulfilling that requirement.

Compulsory leave

Conversely, what about employees who don’t celebrate Christmas? Can they be forced to take time off?

Again, the starting point should be the contract of employment. If employees are given public holidays as paid leave in addition to their annual leave entitlement then they are unlikely to protest. Christmas Day will be given as a day’s paid leave which most will be happy to accept, regardless of their religious beliefs.

However, there is no legal right for time off on public holidays and many employers require these days to be taken out of employees’ annual leave entitlement. Understandably, those who don’t celebrate Christmas may not want to use their valued holidays to take time off at this time of year.

In cases where there is no contractual provision for employees to take holidays when the business is closed then ample notice must be given. This is because it is essentially a compulsory holiday.

The required notice for a period of compulsory annual leave is calculated on a ratio of 2:1 so the notice given should be twice the length of the required leave.

For example, a business which requires its employees to take two days’ leave (say Christmas Day and Boxing Day) must give four days’ notice. Importantly, this must be given in writing.

Of course, care must be taken to ensure that employees have sufficient annual leave left to take during periods when the business is to be closed. By law, an employee cannot be forced to take unpaid leave. Therefore, an employee who has exhausted their paid leave entitlement may have to be given additional paid leave. This sticky situation in December can be prevented by well drafted contracts of employment which details days of compulsory leave well in advance.

Santa’s little helpers

As Father Christmas once (possibly) said “a smooth running Human Resources Department follows a well-drafted contract of employment”.

So if you find your business facing any of the issues above why not make it your New Year’s Resolution, for a less stressful 2014, to seek some assistance from Weightmans’ contract-drafting Elves?

John McArdle is a Paralegal based in our Liverpool office. If you have any queries regarding the issues raised in the article please contact john.mcardle@weightmans.com