I’ve been overwhelmed with requests from staff for time off between Christmas and the New Year. I hate saying no, but if I grant all the requests I will be left short staffed. How do I handle it?


Amanda Magee writes:

During the festive period it is not unusual for employers to face an increased demand for annual leave from staff members. Employers, particularly smaller organisations, may find it difficult to facilitate such demand without seriously impacting on their business. Therefore, it may not be possible to allow everyone to take time off at the same time.

There is no denying that you will be considered a Scrooge for refusing requests for leave over Christmas, but treating employees fairly and consistently can minimise the risk of claims of unfairness.


1. Employer’s entitlement to refuse requests for annual leave


In the absence of any arrangement or agreement to the contrary, Regulation 15 of the Working Time Regulations (NI) 1998 (WTR) provides that a worker must give notice equal to twice the length of the holiday that he or she wishes to take. Regulation 15 also provides that employers are entitled to refuse the worker permission to take the annual leave requested, provided that they give the worker notice equivalent to the period of leave asked for.

If a request for annual leave is declined, the worker must be permitted to take the leave at a later point during the leave year. However, this may be difficult if your holiday year runs from January to December, and the reason why so many requests for leave have been made is to avoid losing any annual leave that can’t be carried over to the next leave year.


2. Prioritising requests for annual leave


Most organisations will have an Annual Leave Policy in place, clearly outlining the procedures for booking time off and rules dictating when employees can and can’t take holiday to ensure there is adequate cover across the business. Alternatively, the rules and procedures regarding annual leave may be outlined in the contract of employment. These documents will also normally include provisions regarding the carry-over of any accrued but untaken annual leave entitlement, and the circumstances in which the entitlement to such leave may be lost.

Annual Leave Policies and Procedures are vital tools for employers as they lay out the rules and procedures that employers and employees should follow in respect of annual leave. Such policies enable Managers to take a consistent approach to annual leave across the business, so that employees feel they have been treated fairly. They also minimise the opportunity for disputes, because an employee is more likely to be granted an annual leave request if he or she has followed the procedure and thereby given their employer sufficient notice of the leave for the employer to prepare for the absence. In the event that any employees do query Management decisions on granting requests for leave, a written policy and procedure will be useful because the company will always have something formal and in writing to fall back on.

However, even where clearly worded policies and procedures are in place, it is important for employers not to fall into the trap of inadvertently favouring certain groups in what would otherwise seem a fair policy on annual leave, or in making exceptions for particular employees depending on their circumstances. For example, giving priority to employees in the following categories may seem reasonable, but in reality such prioritisation has the potential to give rise to accusations of discrimination.


a) Employees with families


It can be particularly difficult for employees with young children to remain at work during the holiday season as their usual childcare arrangements are not available over this period.

However, whilst employers must deal with requests for parental leave and time off for dependents appropriately, there is no legal obligation to favour parents over non-parents when dealing with requests for annual leave. Employers doing so may face accusations of sex discrimination if, say, fathers are treated differently from mothers on the basis of the misplaced stereotype that they are not the primary care providers for young children.

Employers are also at risk from claims of age or sexual orientation discrimination if they prioritise holiday requests from employees with families. This will especially be the case where an employer makes it a condition that only parents with young children may have their holiday request granted over the Christmas period. Such a practice could not only disadvantage women outside child-bearing age but also gay and lesbian employees. Employers wishing to do this would have to show that the practice was justified as a proportionate means of achieving a legitimate aim, which would then be weighed up against its discriminatory effects.


b) Employees with strong religious beliefs


Similarly, it may seem reasonable to give preferential treatment to Christian employees over the Christmas period. However, employers should be wary of prioritising requests from Christians for leave over Christmas since it could expose them to allegations of indirect discrimination from members of other faiths if they are not given such preference during their own religious holidays.

The most obvious and usual policy for employers to operate when considering requests for annual leave is “first come, first served”. Such a policy does not easily lend itself to the pitfalls outlined above, as granting holiday to the first to ask cannot be said to be drawing on any criteria that could be associated with a protected characteristic for discrimination purposes.

Often, however, certain employees will always be the first to get their requests in at the expense of others who only submit their requests on the deadline. If you find that this is often the case in your organisation, it may be useful to consider introducing a rota system, whereby, for example, employees sacrifice their first choice holiday in the summer in order to get their first choice over the festive period. So long as the rota system is transparent and fair and applies to all employees, it has the potential to ensure that all employees get their first choice of holiday at least some of the time.

Other ways to encourage staff to submit requests early and avoid disappointment include setting up a virtual calendar or pinning up a wall planner and asking people to bear it in mind when considering leave requests, or encouraging team members to collaborate with each other in an effort to resolve any leave conflict informally.


3. Refusing a request for annual leave


As above, employers are entitled to refuse an employee’s request for annual leave, so long as this is done in accordance with any policy or contact in place between the parties, or with sufficient notice as outlined in the WTR. You should therefore review you Annual Leave Policy or the employees’ contracts of employment to ensure that any refusal is in line with the provisions outlined therein.

In turning down a holiday request, you must have regard to the duty of mutual trust and confidence that exists between you and the employee. This essentially means that requests should be turned down in good faith and on reasonable grounds, not simply on an arbitrary basis.

Whilst employers are not required by the Regulations to give reasons for refusing holiday requests, it is considered good practice to explain why leave cannot be granted. As you are refusing some requests for leave in this instance on the basis that numerous other staff members have requested the same time off, you may wish consider providing some benefit to those whose requests are refused, such as agreeing that those employees will have first choice of annual leave in the next holiday year.

If it is the case that some members of staff will lose their entitlement to accrued leave as a result of your refusal because your holiday year runs from January to December, you may consider making an exception in relation to the amount of days leave you allow them to carry over into the next holiday year, but limit the extent of the carry-over by stating that the additional days must be used before a certain date to avoid excessive holiday entitlement building up.

In light of the above, it is clear that employers have a huge balancing act to carry out in the run up to Christmas and the New Year. Employers are best advised to maintain a fair policy for granting holiday requests and should specifically state that all employees will be treated equally. Although an employer may take these into account in an attempt to be fair and reasonable, family commitments and religious reasons will not automatically grant an employee permission to take annual leave over the festive period.