I have asked all my staff to agree between them who will be on holiday over Christmas and New Year and who would be manning the fort at that time. It has not worked. It appears that everyone wants the same time off for a variety of reasons from religious observance to childcare to their having worked the break last year. How do I choose who is allowed leave?
You start from the premise that no one has the right to paid holiday without your agreement. Even if they go to the lengths of exercising the right in the Working Time Regulations to dictate a particular holiday date, you also have a right under the same Regulations to override this. Therefore, in practical terms, any holiday which is to be taken must have your consent.
Provided that you do not make decisions about holiday allocation on direct grounds of the employees’ race, sex, etc, or by way of victimisation or retaliation for whistleblowing, you have two concerns in making the necessary choices here, one legal and one not.
The legal question to keep an eye on is indirect discrimination – where the requirement to work over Christmas and New Year would have a detrimental impact on, for example, any new mothers or staunch Christians in your workforce and you cannot justify that requirement. “Justification” requires you to show that making that individual work over that period is a proportionate means of achieving a legitimate aim.
You should have no difficulty in showing that the aim of keeping your company open for business over the festive season is legitimate, so that leaves proportionality.
This entails a look at all the relevant factors – do you really need so many staff in on those days? Could those days be covered by more staff working less time each between Christmas and New Year, rather than fewer working more? Can you maintain the right balance of skills and seniorities among those ultimately chosen to work? Essentially this is about a proper exploration of the alternatives. In other words, could you do without that person at work over that period?
That takes us to the second of your concerns, good old employment relations. Of course, you can do without the new mother or the fervent Christian over those days, but only if someone else who would also like to be off at the same time is required to work instead. Is it a proportionate response to require that person to lose his or her Christmas holiday as a result?
The answer to this is, fairly clearly, no. At most you could ask, but even that seems likely to generate a considerable degree of ill-will towards the “favoured” employee. Who says that his or her religious or childcare preferences are more important than the other employees’ wish to travel, to see their family, or just to put their feet up after a hard year? To insist just makes matters worse. It ill behoves an employer to make decisions based on its own value judgments as to the respective importance or precedence of one person’s personal circumstances over another. The scope for discrimination claims is obvious.
Demonstrably, the most equitable approach is to make these decisions based on who worked the time last year. Some people may be positively glad to work over the festive season, allowing more days off in the good weather earlier in the year and liberating them from the fog of rancour and indigestion surrounding a family Christmas.
If they do not apply for annual leave, there is no problem. However, where two or more do apply, but not all requests can be accepted, basing your decision on who worked last year will brook least challenge. If you operate a first come, first served system then this will prejudice the less organised members of your staff (which, while not unlawful, is not conducive to good employment relations).
In the case of genuine and total indecision, with no means to distinguish two candidates through last year’s work, business requirements, etc, you could do worse than draw straws or toss a coin. Have the employees present so that they can see it is not rigged and assure both of them that the loser will get priority next year.
This sounds like trivialising an important question but as a means of selection it cannot be discriminatory and is, frankly, as fair as any other method in those circumstances for distinguishing between them.
David Whincup, partner, Squire Sanders Hammonds, London