Member Article

On the tenth day of Christmas, HR were again dismayed… ”Can we make everyone work the Christmas bank holidays?

In response to this question most employers will be able to turn to the contract of employment to find the answer.  The contract will typically state whether or not the annual leave allowance is in addition to the usual statutory bank holidays.  Where such wording is found, the employer will have no automatic right to demand that an employee attends for work on a bank holiday (Christmas or otherwise).  However, lots of employers, particularly in the retail or hospitality sectors, will engage staff on contracts which simply provide an entitlement to take a certain number of days as holiday during the course of the year.  In these circumstances, the employer will be permitted to (reasonably) reject any holiday requests that are made by staff who would otherwise be scheduled to work on those bank holidays.  Any staff who are not scheduled to work will be entitled, subject to any other express contractual provision, to reject any request that is received from the employer to attend work, either as overtime or as a shift swap.

Employers who decide that they wish to trade on a bank holiday when they would usually remain closed should exercise caution, even where the contract is worded in their favour.  Employees with long service may seek to argue that ‘custom and practice’ has given them the right to expect to have those days as annual leave.  Similarly, employers who have traded on bank holidays but seek to change operating hours should ensure that they act reasonably in the way that they communicate with staff so that there is no danger of an unexpected breach of the implied term of trust and confidence.

In any situation where an employer has created a level of expectation, caution must be exercised - so often the relatively small issue escalates into a much wider problem as a consequence of an unnecessarily heavy handed approach.  Our advice?  Always assume that the ice is thinner than you think it is and tread carefully!

 

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