Q My company has, as part of its overall employee benefit scheme, a so-called duvet day allowance. All permanent staff get two such days per year, which they usually take as they see fit. I’m concerned, based on past experience and what I’ve heard from senior HR colleagues elsewhere, that many will choose to take them on warm, sunny days in June and July, with the risk of leaving the office under-staffed. Therefore I’d like to introduce restrictions on staff’s duvet day ‘rights’. Can you please advise on what we can and cannot do?
A It is possible to alter staff ‘rights’. The first question is whether or not the ‘right’ is contractual. If not, altering it would not be a breach of contract and staff would not have any legal recourse.
When looking at whether the right is contractual, you should not only check the employment contract but also whether there are any internal procedures or staff memos that refer to this ‘right’.
If there is no such documentation, you need to look at custom and practise how long has this ‘right’ been in place how many members of staff have exercised the ‘right’?
If this is a contractual right, you may alter this with staff consent and an alternative benefit may be offered in exchange. Alternatively, the right could be ‘bought’ for a one-off payment.
For those members of staff who do not agree to the alteration of the ‘right’, they could be ring fenced so that they retain the right. If this is only a limited number then this would restrict the impact of the duvet days and those members of staff may become unpopular when they exercise that ‘right’.
If you do not wish to buy-off the right and it is contractual, you will need to show a business reason why you need to alter this benefit. You will need to show the adverse impact on the business of staff exercising this right. If this can be done, you will need to consult with staff about removing the right and explain why and then serve notice on them that the right will be removed.
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In reality, the right will be difficult to restrict because by its very nature the right is spontaneous, so perhaps replacement with an extra half-day’s holiday may be the best solution.
Stuart Jones, employment partner at Weightmans
