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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 n