Christmas is first and foremost a Christian holiday.
For this reason some employees may argue that they are legally entitled to time off over the Christmas period, particularly on the days allocated as bank holidays. But do they have any legal grounds to do so?
The answer is in the employee’s contract.
If there is no mention of working bank holidays in the employee’s contract, then it is important to note that there is no statutory right for employees to take bank holidays off work. Meaning, it is at your discretion what hours they should work.
If you state that an employee must be free to work on bank holidays, they cannot refuse to work, even for religious reasons.
However, exercise caution.
Religion is one of nine ‘protected characteristics’ as defined by the Equality Act 2010. The others being:
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Sexual orientation
The Act doesn’t say employees are entitled to time off for religious holidays or observance, but an employee could attempt to make a claim against you for refusing them time off, especially if those of different faiths are granted time off but they aren’t.
This could be seen as indirect discrimination and end up at tribunal.
To avoid this scenario, make sure you are as accommodating as possible, and show you considered their request properly. It is recommended that you try to accommodate the request, as this is the simplest route, and is the most effective way to avoid issues.
If it isn’t viable for the employee to take time off, you need to ensure you have a compelling business reason for refusal prior to the refusal. Coming up with a reason after refusing time off could land you in hot water and potentially lead to a tribunal.
Following the refusal, you should explain to the employee exactly why their request isn’t viable and present any alternative working options (such as flexible working) if applicable.
Another way to avoid issues arising is to shut down the office over the winter period. This however, can bring its own discriminatory issues, as it may be considered unfair to workers of non-Christian faiths who wish to work over the Christmas period.
Again, the decision to close the office for a period of time is perfectly viable, so long as it has a justifiable business aim. When closing the office, communication with your employees is key. Explain this policy to employees and what it means for their holiday entitlement – usually in a holiday policy or Christmas holiday policy.
Ultimately, when it comes to employees working over Christmas, you have the final say. However, it is always sensible to exercise caution and cover your back when deciding how to handle holiday requests, especially when protected characteristics are involved.
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