Can an employer force employees to work over a holiday period such as Easter, if there are good business reasons to do so? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise.
The question:
We may have a need to work over the Easter break. We are going to offer double time for the Friday and Monday, plus we’ll give two days to take when they wish. At present, we are asking for volunteers, however if we fail to get enough we may need to enforce it. Where do we stand if we need to enforce it, for instance, how much notice do we need to give?
Legal advice:
Esther Smith, partner, Thomas Eggar
If you do not obtain sufficient volunteers and there are good business reasons why you need to operate during this period, you should be able to rely on the fact that your request that people work during this time amounts to a reasonable management instruction.
However, this will not be easy and many people may try to argue that they are unable to comply with your instructions due to pre-arranged holidays, inability to make alternative childcare arrangements or similar. In this case, they may have good grounds to justify their failure to attend work, and any disciplinary action you impose as a result of their failure to work over Easter would therefore either result in no or a low level warning.
As always, the more notice you can give people, the harder it will be for them to come up with a plausible excuse as they would have had time to make alternative childcare arrangements.
If you have not already told the employees that a lack of volunteers will result in compulsory attendance, you ought to do so sooner rather than later, as it may encourage more volunteers and it will certainly make people aware that they may be required to attend work.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar.
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Martin Brewer, partner and employment law specialist, Mills & Reeve
I’m not really sure what it is you think you are enforcing. Unless you usually work over Easter and have simply mismanaged this year’s holiday arrangements so have no staff, and/or unless you have the contractual right to require a person to work over Easter, there is simply nothing you can do to ‘enforce’ this based on the current contractual arrangements.
If persuasion fails then you could go down the route of threatening to dismiss those who refuse (and this is not without some considerable difficulty and not recommended) or trying to vary contracts beforehand (although this is probably even more difficult in the short term). Perhaps you should consider agency workers to cover this particular Easter and then re-think the flexibility in your contracts over the longer term.
Martin Brewer can be contacted at: martin.brewer@mills-reeve.com
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