Workers’ rights you need to know before Christmas
As Christmas is near, it’s time to set the record straight on
some of the most commonly misunderstood aspects of employment law that apply to
the festive season.
Here are the answers to 5 commonly asked questions. It is focused on minimum legal employment
rights. However, parties can agree to rights above the minimums and these
should be written in the employment agreement.
Is closing down a workplace for a specific period lawful?
Yes. Employers may close down a workplace if the process is
managed lawfully.
An employer may have a regular closedown once a year and this is common over
the Christmas/New Year period. Employees, who are entitled to annual holidays
at the time of a closedown, are required to take annual holidays or other leave
arrangements. The closedown can apply to part or all of the business, but
employees must be given at least 14 days’ notice.
Whether employees should be paid depends on a number of factors, including
whether they have built up enough annual holidays, or if agreed, they can take
annual holidays in advance or unpaid leave.
Should employees working a public holiday always get time and a half, plus an alternative day off?
No. Employees working on a public holiday should always be paid
time and a half. However, they only get an alternative holiday (a paid ‘day in
lieu’) if the public holiday they worked was a day that they normally worked,
(i.e., an ‘otherwise working day’ for them), unless the employee only works on
public holidays. Therefore, not all employees working public holidays are
entitled to an alternative day off.
When a public holiday falls on a Saturday or Sunday, and this is a day the
employee does not normally work, then an employee’s public holiday might be
moved to the following Monday (or in some cases Tuesday).
For example, an employee who normally works weekends is required to work on
Christmas Day this year, Wednesday 25 December. As this is not a normal working
day for them, they don’t get an alternative holiday, but still get paid time
and a half. However, if the Wednesday was their normal working day, they would
also get an alternative holiday.
Can employers refuse a request when their employees ask to take their annual holidays?
Yes. Employers and employees should try to work out annual
holiday arrangements that are acceptable for both parties. For example, an
employee might request to take two of their four weeks’ annual holidays over
the Christmas break for an extended family holiday.
Employees may need to take holidays for important and legitimate personal,
family and community responsibilities and employers must give their employees
the opportunity to take at least two of the four weeks’ annual holidays
continuously. This rule is to ensure staff are given an extended opportunity
for rest and recreation at least once a year.
However, an employer also has the right to run their business as well, eg to
ensure that they have enough staff to continue to operate. The key point here
is that the employer must have fair and reasonable grounds to refuse a request
to take annual holidays at the requested time.
On those occasions when both parties can’t reach agreement about the timing of
employees’ annual holidays, then the employer can decide the dates, providing
they are being fair and reasonable. However, the employee must be given
at least 14 days’ notice to take annual holidays on those specified dates.
Do employers have to provide their employees with annual holidays in advance?
No. Employees don’t have a minimum legal right to take annual
holidays in advance before they complete one year of work. If an employer
provides this, it is at their discretion.
All employees become entitled to at least four weeks’ annual holidays after 12
months of continuous employment.
However, it is also common for some employers to allow their staff to take
annual holidays in advance, even when they haven’t “accrued” enough days.
“Accrued” is like a balance that staff have accumulated since they started
working for a business. However, there is no legal requirement for an employer
to provide annual holidays in advance.
Can employees cash-up all their annual holidays during their employment?
No. Employees can ask to be paid out up to one week’s worth of
annual holidays per year for each entitlement year, but the employer can say no
to the request. If the employer agrees, employees must not cash-up more than
one week’s worth of annual holidays per year for each four weeks’ holiday.
For example, an employee might want extra money for Christmas gifts and
expenses and want to cash-up some of their annual holidays’ balance. The
employee must have completed 12 months’ employment and make the request in
writing. The employer must reply in writing and doesn’t have to give a reason
for their decision.
An employer can also opt out of having to consider such cash-up
requests by stating this in a workplace policy or employment contract.
Also, an employer cannot force an employee to cash up a portion of their annual
holidays, if the employer has not been given a written request from the
employee. In this case, the employee can keep both the cash up money and still
take the portion of annual holidays cashed up as paid holidays. The employer
may also face a penalty.
Wishing you a Merry Christmas and Happy New Year!