Niece being forced to work on a day that is booked off as annual leave

[Icehound18]

Hi, I'm hoping someone can provide any advice for my niece. My niece works at the other end of the country and has booked annual leave to come and see the rest of the family from the 25th November. This has been booked for a few months as it is going to be the equivalent of Xmas for us all.

She works in the care sector and works varying shifts. She has now been told that she needs to work the night shift of the 24th and work through until 8am of the 25th. Her travel is due to leave at 7am so she explained she will work it if she needs to but would then change her annual leave to start on the 26th as she is technically working on the 25th (until 8am).

Her employer has basically told her that she can't move her annual leave and still has to take it from the 25th. When she disputed it, she was basically told that if she doesn't like it she can find somewhere else to work.

This feels wrong to me but I wanted to try and check her rights before advising her (to be more forceful) for fear of me giving her wrong advice. She is 18 and I'm the only person she can turn to for advice so I want to get it right.

I hope that makes sense.

Thanks in anticipation.

[Amethyst]

Her shift starts on the 24th therefore that is the date of work. She won't be starting a shift on the 25th so that is holiday.

When she ends her holiday period, not sure when, but say 5th December, if that's down as her last day holiday, she wouldn't start a shift on the 5th, but would on the 6th ( whether she's rota'd on for earlies, lates or nights )

As she is normally required to work varying shifts and include night work then really, if she wanted to travel at a time before her night shift hours would be due to finish ( if rota'd on ) then she should have booked the 24th off as well.

Can she get a later train? ( say 9am ) ? and sleep when she gets up to you?

She won't have been employed over 2 years so she sadly has few rights, has she got a copy of her contract and employee handbook / terms etc and what does that say about holiday dates? rules on booking and changing ( presumably depends how far ahead rota's are done).

[Icehound18]

Hi amethyst. Thanks very much for the response. I think part of the issue is she wasn't supposed to be working on the 24th which is why she booked the early bus on the 25th. Unfortunately her manager has decided to take that day off and therefore forcing her to work the 24th. Unfortunately there is only the 1 bus each day from where she lives and wouldn't be able to afford the extortionate rail fare.

Her annual leave is from the 25th to the 29th (inclusive) and is back on her shift at 8pm on the 29th. So 5 days annual leave in total.

I think she may just have to accept it as I know the sector she works in is notoriously bad for exploitation!

Thanks again for your advice.

[des8]

Also an employer can cancel an employee's period of annual leave if it gives the required notice. Under reg.15 of the Working Time Regulations 1998 (SI 1998/1833).
Notice of at least the same length as the period of leave to be cancelled has to be given

The employer should have a clear business reason to cancel a period of leave to avoid a possible claim for constructive dismissal following a breach of the implied duty of mutual trust and confidence. However as Amethyst as your niece has less than 2 years service this is not available tio her

[Icehound18]

Thanks Des. My niece has just sent me more information that confuses me even further. She is contracted to work 4 12 hour shifts a week so I would have expected her to need to use 4 days annual leave (1 for each day she would normally be expected to be in work).

It now transpires that she extended her leave so she returns to work at 8 pm on the 3rd December. She is being told to use 9 days of her holiday entitlement to cover the 25th November to the 3rd December.

Is this right?

[des8]

If she works 4 days a week I calculate her annual leave entitlement is about 22.5 days.

The employer can direct when leave is to be taken.
From your description of her working week it seems to me that at the most she is using 5 days from her annual entitlement.
However I get quite confused trying to work out holiday entitlement (being retired it doesn't overly worry me!) so tagging Ula for you

[ULA]

Sorry for not popping in sooner.

Your niece works shifts, is this done on the basis of 4 shifts on then a number of days off then 4 shifts then off again. If so what is the number of days she has off between shifts? This information will help me calculate the number of days off she has per year which is based on the average of the shifts worked over a 12 week period and then what she needs to take to cover her holiday.

On the issue of being asked to work the 24th, is there always the possibility of being asked to come in to cover a shift even if not rostered for it due to someone deciding to take holiday? If so then with hindsight booking travel (albeit I understand the economic reasons) that prevented her being able to do so is unfortunately maybe a lesson learnt. That said there is an argument that says her holiday starts at 00:00 on 25th as this is the start of a new day, so given that she could work on the 24th but only until the end of that day.

What I do find a bit harsh is not allowing her to change the start date of her holiday by a day particularly if she intends to return for her shift on 29th. However as already said that is her employer's right if there is a business reason for doing so.

[Icehound18]

Thanks all. I've asked if she can send me a copy of her contract and what is expected of her. When I asked what her shift pattern normally is she told me it is "whenever they need me". She then told me that a couple of weeks ago they made her work 15 days straight including a night shift and a day shift straight after each other, allowed to go home 'early' for a few hours and then back in for her normal night shift rota. I've told her to look for something else as I personally think they are using her as the use and abuse person to cover everything else that is needed.

[ULA]

I have serious concerns for your niece in regard to her working patterns and the Working Time Regulations which dictate maximum working hours per week (unless opted out), daily and weekly rest breaks. Working 15 days straight and a night followed by a day shift do not comply with those regulations.

[Icehound18]

Thanks Ula. I've said exactly the same thing. I work in a funding area that supports apprenticeships and we hear about similar practices all the time. I've told her to keep a diary of everything until she can find something else . The sector is renowned for issues like this and I've pointed her in the direction of the average 48 hours per week guidance but as it is over a 17 week period I think the employer knows how far to push it without breaking this regulation. Thanks again to everyone for their help help and advice.

[ULA]

Good advice on getting her to keep a diary. The daily/weekly rest breaks are dependent on any time period so your niece needs to really monitor this aspect.