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I am a single mum and work full time. I am entitled to 29 days annual leave per year. As a company holidays are not normally authorised between the 15th December and 15th January, although this is not stated in my contract. This year I have the issue of it being my year to have the kids over the Christmas and New Year period. My childminder is shut during this time and the only family support I have are going away this year. I wrote to my manager to ask permission to use four of my remaining 8.5 days holidays during this time and clearly explained the reason I was requesting this. On returning home today I have received a letter stating that this request has been refused. I am really worried and don’t know where I stand or what I can do. Can you help?
I note from your question that you wanted to take annual leave over the Christmas period to care for your children yet your employer has refused your request. I further note that your employer does not normally authorise holidays between 15 December and 15 January, although this is not stated in your contract of employment. You requested leave over Christmas this year to look after your children and I understand you have no alternative childcare options. I understand that you informed your employer of the reason for your request for leave, but this was still refused. I also understand that after making your request you received a group email stating that no holidays would be authorised over Christmas and New Year due to company policy.
The taking of annual leave is governed by Regulation 15 of the Working Time Regulations 1998 (WTR). In this respect, you cannot choose to take annual leave at any time you wish and the WTR contain various notice requirements. Under the WTR, a worker is required to give written notice to their employer of their intention to take annual leave. Under that WTR your employer has the power to issue a negative notice, prohibiting you from taking annual leave, either in response to your notice to take annual leave or on their own initiative. Your employer therefore has the power to issue a notice requiring workers not to take leave on particular days, for example, to force employees to schedule holidays to coincide with annual shutdowns or to avoid particularly busy periods. Such notice from your employer must be given at least as many days in advance of the earliest day specified in the notice as the number of days to which the notice relates. This may explain why your employer sent the group email reminding staff of policy on taking holidays over Christmas and New Year so that they can contend that all workers had reasonable notice of this.
In refusing a request for annual leave, your employer need not take into account your reasons for requesting the leave (in this case, to look after your children). However, your employer must exercise its discretion regarding the acceptance or not of holiday requests fairly and you could argue that this would include, in your situation, considering the fact that, on this occasion, you need annual leave to look after your children and that you have no other alternative. Exercising its discretion unfairly may mean that you could claim that your employer has breached the implied term of trust and confidence in your contract, which would entitle you to resign and claim constructive unfair dismissal. Any claim for constructive unfair dismissal must be submitted within three months of your resignation and you would need to follow the Acas pre-conciliation procedures before submitting a claim. I would always advise you to take further specific legal advice before resigning from your employment position.
Furthermore, despite the fact that your written contract of employment is silent on this point, you could argue that your employer’s ‘policy’ of not allowing annual leave to be taken over the Christmas period is indirectly discriminatory against women, as the law recognises that women have greater childcare responsibilities and therefore such a policy may have a greater adverse impact on women than on men. Your employer’s policy in this regard may therefore constitute an act of sex discrimination. Any claim for sex discrimination must be submitted within three months of the discriminatory act and, again, you would need to follow the acas pre-conciliation procedures before submitting a claim. Please bear in mind that an act of indirect discrimination can be justified by your employer if it can show that it is “a proportionate means of achieving a legitimate aim”. However, on the face of it, you would have an argument that your employer’s ‘policy’ does constitute unlawful discrimination.
In an effort to resolve matters amicably in the first instance, I would advise you to discuss the problem further with your HR department and explain the specific reasons why you need to take the leave. If HR still refuse your request, I would advise you to submit a formal grievance setting out the points I have made above. Should this fail to resolve matters for you, you may wish to consider a tribunal claim, but I would urge you to take further legal advice before doing so. Should you require any further guidance on the above points then please do not hesitate to contact Tracey Guest on 0161 975 3823.
*Helen Frankland assisted in answering this question.