Workload increasing: ask the expert

On my return from maternity leave I have been granted with flexible working arrangements without a problem. I have changed my working pattern from 5 days a week to 4 days a week and slightly reduced my weekly hours. Due to the nature of the job I’m doing there has always been an unwritten rule that people in our department are NOT to take annual leave during one week each month. I need to highlight at this stage that there isn’t a clause in my contract that states this. Recently, one of our colleagues has moved on and now we are not allowed to replace him and as a result the workload for all of us has increased. I have been told by my line manager that because of the workload we are now NOT allowed to take any annual leave during 2 specific weeks in each month. On top of that if one of us is already off, nobody else can request leave etc. This is causing extremely bad behaviour in the team (first time first served basis) and as a result of that I have become very stressed. Does my line manager have a right to put this constraint on us and where this leaves me with regards to family friendly policy and flexible working patterns? I’ve checked the company HR policy and couldn’t find anything which relates to my problem.

Under the Working Time Regulations 1998 (WTR) you have a statutory right to a minimum of  5.6 weeks’ annual leave in each holiday year. Many employers will of course have more generous policies in place with regards to holiday entitlement.

Whilst you do have an entitlement to annual leave, the WTR states that an employer may instruct a worker to take or not to take leave by giving notice. This allows employers to schedule holidays to fit in with peaks and troughs in production requirements. Your line manager is exercising this discretion by preventing anybody from taking annual leave during specific weeks of the month, which he is permitted to do. In addition, your contract of employment will probably state that holidays must be taken only with the company’s approval or at times convenient to the company, which gives your employer the contractual right to refuse holiday requests.

The only time you could legitimately require the company to allow you to take holidays is in situations (generally at the end of the leave year) where employees have a large amount of holiday left to take. The company must allow you to take your minimum of 5.6 weeks per year. Therefore, if you had only taken 3.6 weeks and had two weeks of your statutory entitlement to holiday left to take and there were only three weeks of the holiday year left, your employer would have to allow you to take those days during that period. If they refused, they would breach the WTR, which would allow you to bring a claim against them. You also say that holidays are allocated on a first come first served basis. If by working four days per week this means that it is more difficult for you to be the first to request holidays then potentially this rule is discriminatory against part time workers.

You state that you are becoming stressed at work due to the conditions your employer has imposed. As this is the case, you may wish to consider raising your concerns with your employer informally, or if this is not successful, by raising a formal grievance in accordance with your employer’s grievance procedure. You could do this alone or raise a collective grievance with other team members by putting your concerns in writing and requesting a meeting to discuss how best to resolve the situation. Perhaps you could suggest that a fairer procedure (as opposed to “first come first served”) should be implemented and raise the fact that this rule appears to be discriminatory against part time workers. In addition, if you are not permitted to take your entitlement to holidays under the WTR over the course of the holiday year then this would also form part of your grievance. If the issues are not properly addressed and you are made unwell by the way the grievance is handled then potentially you could resign and claim constructive unfair dismissal. However you should take legal advice before taking this step as it may be that the issues are not serious enough to justify you resigning (in which case your claim would fail).

In terms of flexible working, your employer has acted in accordance with their duty to consider your flexible working request and has given their approval. Your right to request flexible working is an entirely separate right from your annual leave entitlement. The constraints placed upon you in terms of annual leave do not affect your flexible working pattern as agreed with your employer.

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