Holidays for working over Christmas

We are a small team. I work part time and always have Thursdays and the weekend off. The employer has stated we will close the office (and be paid additional ‘bonus holiday’) on Thursday 24th December, Friday 25th Dec, Sat 26th Dec, Mon 28th December. A full timer will then work a half day on 29th and I will work a half day on 30th. A director will work a half day on 31st.  The full-time staff member will be receiving 26 hours additional paid leave in total and I will be receiving 11 hours additional paid leave. My query is am I entitled to more leave than I am receiving as I am already off on 24th & 31st as they are my normal days off? I have worked out that I work 79% of the full time hours a week, so can I request 79% of the additional leave provided (20 hours 33 minutes) which leaves me with 9 hours 33 minutes to take at another time or to be paid in lieu or as it is a ‘bonus’ to our normal holidays, do I just accept what has been given and carry on as normal?

I note from your question that you work part-time, with Thursdays and weekends off, which equates to 79% of the hours that full-time staff work.

Your employer has stated that it will close your office and pay staff additional ‘bonus holiday’ on Thursday 24th, Friday 25th, Saturday 26th and Monday 28th December 2015. Staff will then work reduced hours for the following few days. You state that you will be receiving 11 hours’ additional paid leave, whereas full-time staff will receive 26 hours’ additional paid leave.

You have questioned whether you are entitled to more leave than you are currently receiving.

Your question does raise issues under the Part-time Workers (prevention of Less Favourable Treatment) Regulations 2000 because you, as a part-time worker, may be able to argue that you are treated less favourably than comparable full-time workers because you will receive fewer holidays (pro-rata) than they do.

In determining whether you have been treated less favourably than your full-time colleagues, the pro rata principle must be applied. This principle means that, where a comparable full-time worker receives or is entitled to receive pay or any other benefit, a part-time worker is entitled to receive not less than the proportion of that pay or other benefit that the number of your weekly hours bears to the number of weekly hours of the full-time comparator. In terms of holidays, you would therefore be entitled to pro-rata holidays (and bank holidays).

From the information you have provided, it appears that, strictly speaking, you are receiving less holiday pro-rata than your full-time colleagues. It may be that you could therefore have a claim under the Part-time Workers (prevention of Less Favourable Treatment) Regulations 2000 due to the fact that you have been treated less favourably than your full-time colleagues. However, the law is still somewhat unclear on this issue, yet it is established that in order to have a claim, you must show that the less favourable treatment is “on the ground that” you are a part-time worker. It is likely that your employer will argue that the reason  for the fact that you are receiving less ‘bonus’ holidays is that you do not work on Thursdays, rather than the reason being that you work part time. If your employer succeeded in establishing this reasoning, it is likely that you would not succeed in a claim.

I would, however, still suggest you speak to your employer about the matter to see if they will agree to give you a pro-rata entitlement to the additional ‘bonus’ holiday. If this doesn’t resolve the issue then you should consider making a complaint using your employer’s grievance procedure. If that does not work and you wish to pursue the matter further then I would suggest you take specific legal advice on your next steps.

Please note that a complaint of less favourable treatment or detriment under the Part Time Worker Regulations must be presented to an employment tribunal before the end of the period of three months beginning with the date of the relevant act/omission and you must also have undertaken the Acas Early Conciliation procedure before submitting a claim.

Should you require any further clarification on the above points please contact Tracey Guest on 0161 672 1425.

*Helen Frankland has assisted in answering this question.

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