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Contract of Employment

Discrimination regarding Christmas Holidays

Many organisations find themselves in a difficult position when it comes to authorising employees holiday requests over the Christmas period if the organisation does not close for the festive season.

Employers will have no difficulty in showing that the aim of keeping their company open for business over the festive season is legitimate, so that leaves proportionality.

Employers could start from the premise that no one has the right

to paid holiday without their employer’s agreement. Employers should not make decisions about holiday allocation on direct or indirect discrimination grounds of the employees' race, sex, religion etc,

 

Employers should consider the relevant factors regarding holidays over the Christmas period:-

  • Do they 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 they 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 they do without that person at work over that period?

Often employers make the decision based on who worked the time last year. Some people may be positively glad to work over the festive season.  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 could be a challenge. If you operate a first come, first served system then this could 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 as fair as any other method in those circumstances for distinguishing between them.

At Prestige we understand the personnel issues amongst employers & employees and want to wish all organisations very Merry Christmas and able to provide further advice in this situation.

 

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