Dealing with employees who refuse to work over the Christmas period
Christmas is a time for celebration and the overindulgence of chocolate and mince pies…. But what happens if your business is required to stay open during the festive period or you decide not to shut down between Christmas and New Year?
Automatic right to Christmas holidays
Chances are, most employees have the right to have Christmas day off, with many either being given that benefit in their contract of employment or via custom and practice. However, there is no automatic right to have Christmas day off.
Can employees be forced to take holiday over Christmas?
Simply, yes they can. If the business shuts down over the Christmas period, employers can require employees to take some of their holiday entitlement during that time.
General guidance would be for employers to be open and upfront about their plans for the business over Christmas – the more time employees are given to make alternative arrangements the better.
That being said, business closures can’t always be planned and may be more of a last-minute decision. If this is the case, employers do have the right to make changes as to when employees’ take their holiday, however they must give at least twice as many days’ notice before the amount of holiday that is needed to be taken; for example if the employees will need to take two days of holiday, they should be given at least four days’ notice.
Employers should also consider whether there has been custom and practice before making any decision to change the way employees take holidays.
Can employees be forced to work overtime over the festive period?
Again, ultimately it will come down to the contractual provisions, but the case of Edwards v Bramble Foods might come as a bit of relief to employers.
In this case, the employer was going through a very busy period leading up to Christmas and as a consequence, introduced an overtime rota system to deal with the additional workload. The employees’ contracts stated that the employer had the right to require them to work extra hours when the business deemed necessary, however one employee took a dislike to that clause.
The employee was put on the rota to work Saturdays but repeatedly refused as she claimed it was her family time. Of course, this didn’t go down well with the employer, or the other employees who raised grievances about her behaviour. In their defence, she was also mocking those who had agreed to work the overtime…
After numerous discussions, the employer decided that enough was enough and dismissed the employee based on the fact that they were worried her behaviour would be contagious and that her constant refusal meant that the business might not be able to meet customer demand. Unsurprisingly, the employee wasn’t impressed and issued a claim for unfair dismissal. Interestingly, the Tribunal held that the dismissal had been fair for the following reasons:
- The employee did not have a valid reason for refusing the overtime
- The consequences of her behaviour could have had a huge impact on the business
- The employee was contractually required to work overtime and the request to do so was reasonable.
This goes to show that if an employer has the contractual right to require employees to work additional hours, but they refuse to do so (even over the Christmas period!) any consequent dismissal could be deemed fair. It goes without saying that any relevant disciplinary procedures should be followed before a dismissal!
If you require assistance or would like any advice on holiday queries or staff refusals, then please get in touch with a member of the team on 01752 663295.