You've been good all year, but ask for a holiday and your boss could still refuse to play Santa

Parents vs non-parents, Christians vs atheists: Michelle Chance sees how employers can reach a fair decision in deciding who gets time off

Top of most people's wish list during the festive season is time off work. But the question of who gets to stay home with the hot mulled wine, and who has to stay in the office with the cold mince pies, can prove pricklier than a bough of holly.

Time off work

Employers are often inundated with holiday leave requests for the period between Christmas Eve and 2 January. For human resources departments and line managers, deciding which of these requests to grant can be stressful.

A key consideration is whether staff with children should be given priority. While employers are not under any legal obligation to favour parents over non-parents, if they promote themselves as being "family friendly" they may face criticism from parents whose holiday requests are denied. It can be particularly difficult for employees with young children if their usual childcare arrangements are not available over this period if, say, a nursery is closed. However "families" are not only parents with dependent children. Employees may also want quality time over Christmas with their parents, grandparents, spouses, partners and extended families.

Balancing the different, often competing needs of a diverse workforce is not easy. The number of older people without children is rising, and employers risk alienating a proportion of their workforce whatever decision they make. But companies can at least minimise the threat of legal action from disgruntled staff when considering requests for leave.

Sex discrimination

If they do decide to prioritise employees with children, employers should not treat mothers any differently to fathers, on the basis of the old-fashioned stereotype that they are the primary care providers for young children. This could lead to allegations of sex discrimination from male staff.

Age/sexual orientation

Employers may also be guilty of discrimination on the grounds of age or sexual orientation, if they make it a condition that to have their holiday request granted over the Christmas period, staff must have young children. Such a practice could disadvantage women outside child-bearing age, gay men and lesbians, as statistics show they are less likely than younger or heterosexual people to have children. If claims were brought on this basis, the onus would be on the employer to show that the practice was justified as a proportionate means of pursuing a legitimate aim, which would then be weighed up against its discriminatory effects.

Religious beliefs

An employer who prioritises requests from Christians for leave over Christmas could face allegations of discrimination from atheists, agnostics or people of other faiths, particularly as Christmas has become so commercialised and relatively few people today celebrate it as a religious festival. Provided that staff can attend Midnight Mass on Christmas Eve, if they wish, there may be little reason why Christians should be given preferential treatment, unless they plan to observe strictly the whole 12 days of Christmas by attending church every day. The legislation protects employees from less favourable treatment not only on the grounds of their religious belief, but also because of their lack of such belief.

Employees of other faiths may be prepared to work over the Christmas period if, for example, they are granted leave for their own religious festivals such as Hanukkah or Diwali. However, non-Christians too will face problems accessing childcare over Christmas, as schools and nurseries are closed.

An employee alleging any form of discrimination described above would probably not suffer financial loss as a result of having their request for leave denied. So they would not be awarded any compensation on that basis. But if their claim were successful, they could be awarded compensation for "injury to feelings", which can range from 500 to 25,000.

Flexible working

What happens if an employee makes a flexible working request only in respect of the Christmas period? Do you have to grant it?

As the law stands, only a parent with a child under five or a disabled child under 18 can request that their employer consider allowing them to work flexible hours. The employee must also have 26 weeks' continuous employment with the firm.

Any request granted to work flexibly over Christmas would result in a permanent change to the employee's employment contract. So unless the employee wanted such a change, the request would not be appropriate.

Parental leave

Should an employee making a request for parental leave at Christmas be given preference over non-parents wanting holiday leave for the same period?

The first issue is whether the employee applying for parental leave meets the statutory eligibility criteria. To be eligible for parental leave, the employee must have been continuously employed for not less than a year at the time of making the request. The request must be made in respect of a child who is under five, or 18 in the case of a disabled child. The right also applies to adopted children.

Parental leave is unpaid, so if you have overspent on the company Christmas party or have been overly generous with your employees' Christmas bonuses, you may well want to grant unpaid parental leave requests in preference to paid holiday.

Leave granted on parental grounds should be used for the purpose of caring for a child, so if the employee lets it slip that the real reason they want time off is to go shopping in the post-Christmas sales, then the request could be refused legitimately on that basis. However, it can be difficult for employers to establish the true motive for an employee's request for leave.

Parental leave has to be taken in blocks of a week, so if the employee wants only three days off, that would count as one week's parental leave. The employee must also give the employer at least 21 days' notice of their wish to take parental leave.

Except where parental leave is requested immediately on the birth of a child or placement of a child for adoption, an employer can postpone an employee's request for leave where it considers that the operation of its business would be otherwise unduly disrupted.

Examples of justifiable reasons for a postponement include instances when a significant proportion of the workforce applies for parental leave or holiday leave at the same time. The employer can postpone parental leave for up to six months after the Christmas period. Employees who wish to take parental leave over Christmas should therefore try to get their requests in early before the rest of the workforce start asking for time off.

Unfortunately, an employer is not Santa Claus and cannot make everyone's Christmas wishes come true each year. However, fair policies and procedures consistently applied can minimise the boss's chances of being characterised as Scrooge.

Michelle Chance is a senior associate specialising in employment, discrimination and partnership law at City law firm Fox, and can be contacted on mchance@foxlawyers.com or 020 7618 2883.

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