Change to holiday entitlement. Can this be done?

[Thistle]

I'd be greatful for any assistance that anyone could provide.

My partner currently works for a very large company. He works shifts and his current pattern is 5+2, 5+2, 10+4, 5+2, 5+2. 7+7 (so two days off after every 5, 4 days off after every 10 and 7 days off after every 7). He also has his 28 days holiday each year that he can choose when to take (although he can't take any days off during his 7 shift).

The company are looking to implement a new pattern which would mean his shifts would become 7+7, 5+2 repeated so he'd work 5 days, off 2, work 7 days, off 7.

However, in switching to this pattern, the company are removing all holidays as the workers will have every 3rd week off so all holiday entitlement will part of this rostered shift. This means that no one will be able to take a fortnight's holiday, in fact no one will even be able to go on holiday for a week as the last shift on the 7s finishes at 10pm so you couldn't go on holiday until the Monday then you have to be back by Sunday in order to be back at work the following Monday.

It also means that people will be unable to take a day off or a couple of days for a long weekend etc. The only holidays you will get is the time off between shifts.

Is this something that the company can legally implement? Can they dictate to such a degree the holidays of the workers especially if it prevents anyone from actually having a family holiday of a week, let alone 10 days or a fortnight?

Many thanks.

[charitynjw]

Re: Change to holiday entitlement. Can this be done?

Hi Thistle, & welcome.

You will need to refer to the employment contract/statement of employment particulars.

Is there a variation clause which may allow this?

Is your partner a union member?

Some advice here
http://www.adviceguide.org.uk/index/...oliday_pay.pdf

http://www.adviceguide.org.uk/index/..._contracts.pdf

[teaboy2]

Re: Change to holiday entitlement. Can this be done?

Hmmmm, very good question, though employment rights act, does allow for the employee to request his/her holiday time off. I do not believe a company can dictate when an employee takes their holidays like your other halves company is trying to, though this will need looking into more.

Also their maybe a working times regulation breach here too. For example an employer can not force and employee to work more than a maximum of 48 hours over a 7 day continous period. How many hours would your other halve be working in total and did he optout of the 48 hour limit to work over 48 hours a week?

Scartch the part about the employment rights act, as the employer can control when an employee takes there holiday am afraid, i just checked, though its not actually in the employments right act but in working time regulations. Sorry about that, was originally going by off the top of my head.

Here you will find everything you need to know, in non legal jargon - Working Time Regulations 2012, Working Hours, Rest Breaks, Holiday Entitlements, Working Time Directive, Bank Holidays - Guides advice from Freelance Advisor

But the issue about maximum hours worked per week, may still have a key part to play as to whether your other halves employers can make these changes.

[Thistle]

Re: Change to holiday entitlement. Can this be done?

Thank you to both of you for your advice.

The hours worked is potentially going to be an angle that can be challenged, even if the holiday situation can't be. The company are making a big deal out of the fact that the day shift (on the 5+2s) will finish an hour earlier. During the 5+2 weeks he'll be working 5 x 8.5 hour shifts but on the 7 day shift he'll be working 5 x 8.5 hours and 2 x 10 hours which takes him over the 48 hours - which he hasn't opted out of.

I don't think there is a variation clause in his contract but we'll have a good read through it this evening. In the meantime, I'll have a good read at the links you both provided.

As yet, this hasn't been implemented as it is being discussed with the workers and will be put to the vote. There is pretty much all round anger at the proposed changes and the holiday situation is the main sticking point with everyone. The company want it implemented by July if they get a 51% vote but everyone in the company is getting a vote including the managerial staff, office staff, admin staff, cooks etc who this change doesn't apply to. They will still have their current hours and holiday allowance but are able to vote on whether everyone else has to change.

[teaboy2]

Re: Change to holiday entitlement. Can this be done?

If hes not opted out, and if the company try to implement this new shift pattern they would be in breach of the working times regulations section 4 - I have included a qoutation of section 4 below so you can work out if a breach will occur as you need to work out your other halves hours over a 17 week continuous period based on the shift pattern that the employers wanting to bring in. If the total exceeds 48 hours then they simply can not enforce the new shift pattern without trying to force people to optout, which if they did try and force people to they would also be in breach of the working times regulations too.

Maximum weekly working time

4.—(1) Subject to regulation 5, a worker’s working time, including overtime, in any reference period which is applicable in his case shall not exceed an average of 48 hours for each seven days.
(2) An employer shall take all reasonable steps, in keeping with the need to protect the health and safety of workers, to ensure that the limit specified in paragraph (1) is complied with in the case of each worker employed by him in relation to whom it applies.
(3) Subject to paragraphs (4) and (5) and any agreement under regulation 23(b), the reference periods which apply in the case of a worker are—
(a)where a relevant agreement provides for the application of this regulation in relation to successive periods of 17 weeks, each such period, or
(b)in any other case, any period of 17 weeks in the course of his employment.
(4) Where a worker has worked for his employer for less than 17 weeks, the reference period applicable in his case is the period that has elapsed since he started work for his employer.
(5) Paragraphs (3) and (4) shall apply to a worker who is excluded from the scope of certain provisions of these Regulations by regulation 21 as if for each reference to 17 weeks there were substituted a reference to 26 weeks.
(6) For the purposes of this regulation, a worker’s average working time for each seven days during a reference period shall be determined according to the formula—


where—

• A is the aggregate number of hours comprised in the worker’s working time during the course of the reference period;
• B is the aggregate number of hours comprised in his working time during the course of the period beginning immediately after the end of the reference period and ending when the number of days in that subsequent period on which he has worked equals the number of excluded days during the reference period; and
• C is the number of weeks in the reference period.

(7) In paragraph (6), “excluded days” means days comprised in—
(a)any period of annual leave taken by the worker in exercise of his entitlement under regulation 13;
(b)any period of sick leave taken by the worker;
(c)any period of maternity leave taken by the worker; and
(d)any period in respect of which the limit specified in paragraph (1) did not apply in relation to the worker by virtue of regulation 5.

[charitynjw]

Re: Change to holiday entitlement. Can this be done?

There is, however, this to consider from ACAS http://www.acas.org.uk/index.aspx?articleid=2155

My employers want to change my contract - can they do this?

Your contract can be changed by mutual agreement between you and your employer. Where you don't agree to a change, it is possible your employers may terminate your original contract, with proper notice and by following any relevant procedures. They may then offer you a new contract including the revised terms. There will be no breach of contract as a result of taking this action. If you accept the new contract your continuity of employment is preserved.
Your employers must give you the notice specified (or implied) in your contract, or the minimum statutory notice period, whichever is the longer.
Under the law the termination will be regarded as a dismissal and providing you are eligible you may claim unfair dismissal before an employment tribunal. This is true whether you refuse to accept the new contract and leave, or are dismissed under the old contract and re-engaged?

[Ninnings]

Re: Change to holiday entitlement. Can this be done?

All full time employees are entitled to 5.6 weeks paid holiday legally. The company can request that holiday is taken during specific periods i.e. the week off but of those weeks off 5.6 of them must be paid. In terms of working time regulations the amount of hours is calculated over a 17 week period, therefore you would need to calculate wha hours your partner would work over an average 17 weeks then divide by 17, if this figure then exceeded 48 hours per week then the regulations will be breached.