Tughans LLP on employment law and difficult workplace scenarios.

For December 2023, we have asked the employment team at Tughans LLP to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal, from time to time, with the less commonplace disputes at work; issues that may, if handled incorrectly, lead to claims of discrimination, constructive dismissal or some other serious difficulty.

This month’s problem is:

“December is the busiest month of the year for us and we refuse requests for annual leave in the build up to Christmas. We then shut down for the Christmas holidays and all employees must take annual leave.

An employee has requested annual leave in December to celebrate Hanukkah with his family and has offered to work during the shutdown period over the Christmas break. How do I handle it?”

The build up to Christmas can be a very busy period for businesses of all types, with increased pressure to meet customer demands before the new year. Employers must manage annual leave effectively to avoid holidays clashes, understaffing and other operational difficulties. I assume that you have a holiday policy which covers how you deal with annual leave requests – this will be your starting point.

The basic position is that there is no specific legal obligation to grant employees time off to observe religious holidays or festivals. However, as with many countries, public holidays in the UK are based around a broadly Christian calendar – including Christmas and Easter – which some employees may not follow.

In the first instance, you should consider whether it is possible to accommodate the employee’s request. If you refuse the request on the basis that your policy requires all employees to work in the build up to Christmas, the employee may challenge your decision on the basis that this places him at a substantial disadvantage due to his religious belief, as part of an indirect discrimination claim.

If you do refuse, you should be prepared to demonstrate a clear and objective justification for your decision. You should check whether you can arrange cover for the employee, and ultimately, whether you would have enough staff to meet your business needs during their leave. If you simply cannot accept the request on business grounds, this should be an objective justification for refusal.

The employee has offered to cover the “shut down” period over the Christmas break. While having a “shut down” period may suit many of your employees, it is again arguable that requiring staff to use their annual leave over this period places this employee at a disadvantage due to his religion, because he cannot take days off to celebrate Hanukkah. As before, you should first consider whether this request can be accommodated rather than automatically refusing.

This will depend greatly on the circumstances. You should consider the nature of their role, their place of work, the duties they do and availability of work during the shutdown period. Given you are located in the UK, many industries shut down or have skeleton cover between Christmas and new year – so your customers, suppliers and other employees may be unavailable, leaving this employee with little or no work to do.

If this employee has to attend work in person, you should consider whether this would be prevented by any physical workplace closure over the Christmas break. If their role involves operating machinery or other manual tasks, you should consider your duty to protect the health and safety of your employees, given that you may not be able to guarantee normal levels of supervision, first aiders etc. while the majority of staff are on leave. You may already have a policy on lone workers which you could refer to. For example, it would obviously be impractical and unsafe to open a factory production line just to facilitate this employee’s request.

On the other hand, it actually may be beneficial to allow the employee to work over these days, if they can carry out their usual duties in the normal way. You should consider if there is any way of actually monitoring the work they do – given that their managers will be on leave.

Overall, you should consider all the circumstances rather than adopting a “one size fits all” approach.   If after consideration, it is not feasible to approve the employee’s request, you must demonstrate that your refusal was a proportionate means of achieving a legitimate business aim. For example, meeting seasonal high operational demands could be a legitimate aim, as could lack of work or supervision during the shutdown period. If you have refused the request for leave over Hannukah, presumably the employee will have an outstanding leave balance which you must encourage them to use within the leave year. This may necessitate taking leave over Christmas if they can’t carry it over.

Once you have established these reasons, you should communicate them clearly and sensitively to the employee. You may be able to offer alternative options, such as private space for religious observances during the work day, or temporary flexibility around working hours or other arrangements.

Finally, you should ensure that you treat all requests consistently; there is an obvious discrimination risk if you accept requests from employees with a particular religious belief but refuse them from others unless you can objectively justify this approach.

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