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Matthew Whelan

Speechly Bircham

Solicitor

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Ask the Expert: How do I ensure that shift workers get the right holiday?

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The question

We have a team of 24/7/365 shift workers working four days on, four days off, 12 hours each shift.
 
Using the calculation on the Direct.Gov website (5.6 weeks entitlement x 3.5 shifts worked per week = 19.6 12 hour shifts annual entitlement), the team is entitled to 19.6 shifts off per year as a minimum.
 
Contractually, we offer full-time workers on standard hours 22 days holiday per annum, plus bank holidays, rising with length of service to 28 days holiday per annum plus bank holidays.
 
We have realised that when we set the shift team up, rather than reducing the number of holidays they were entitled to in order to account for the fact that they worked less shifts a week, we actually increased their holiday entitlement to compensate them for working more hours per week than standard full-time workers (approximately 42 hours a week worked compared to 37.5 hours for all other staff).
 
This situation needs to change because, at the moment, we are trying to find cover for too many holidays eg due to length of service and the agreement that we incorrectly put in place, most of the team had the equivalent of 8.5 weeks holiday last year.
 
How do I ensure that workers are given the correct amount of holiday entitlement?
 
I suggested that, as the shift workers do 3.5 shifts a week and full-time workers do five shifts a week, we should give the shift workers 70% of the full-time worker’s holiday entitlement (3.5/5 *100).
 
I thought this would be equitable because, financially, they are not losing out and it brings the breaks in line. But the argument that came back is that it is not fair because shift workers work more hours per week and, therefore, should be given more breaks. What is the legal position here?
 
 
The legal verdict
 
Matthew Whelan, solicitor at Speechly Bircham
 
Under the Working Time Regulations 1998 (‘the Regulations’), all workers have a right to 5.6 weeks’ annual leave, subject to a cap of 28 days’ annual leave.
 
Where an employee does not work a fixed number of hours each week, as is the case with your shift patterns, where some personnel work three days for some weeks and four during others, then you need to establish what the average number of working hours are. 
 
Unfortunately, the Regulations do not set out how to calculate such a figure under this scenario and also provide no reference period for the calculation.
 
I do not think that giving shift workers 70% of a full-time employee’s entitlement would comply with the Regulations, however. But providing them with annual leave entitlement of 19.6, twelve-hour shifts is likely to satisfy entitlement requirements under the legislation, although the particular circumstances of the shift patterns and any other variables may alter how the final figure should be calculated. 
 
As a result, you should take advice and potentially keep the situation under review. 
 
It is important to bear in mind that the Regulations only set out the minimum entitlement and you can provide more contractually if you desire. If there is a binding agreement to give more, which it sounds from what you say that there might be, then you will need to vary employees’ contracts to reduce the amount.
 
Introducing varying contracts requires careful consideration as there is a process that will need to be followed in order to observe employees’ rights and ensure that the changes are implemented effectively.
 
Matthew Whelan is a solicitor at law firm, Speechly Bircham LLP.
 
 
Andrew Crudge, a solicitor at Thomas Eggar
 
The first point to note is that your calculation of the statutory minimum entitlement to holiday for the shift workers is absolutely correct – they are entitled to 19.6 shifts as holiday per year. Moreover, the holiday entitlement for your other workers on a standard five day week will also be 5.6 weeks’ holiday per annum.
 
This means that your provision of 8.5 weeks’ holiday per year far exceeds the statutory minimum and so it is understandable why you are looking to address the situation.
 
From a legal perspective, provided you comply with the statutory minimum in holiday entitlement, there is no requirement for you to offer precisely the same amount of holiday to shift workers as you do to other employees.
 
However, as a practical issue, you are likely to face discontent from one set of staff if you fail to provide similar amounts of holiday for each group. Therefore, the best way to approach the scenario would be to consult with both sets of workers in order to obtain their views as to what would constitute an equitable split of holiday between the two groups.
 
The major difficulty you are likely to face though is that any attempt to reduce either group’s holiday entitlement amounts to a change to their contractual terms. Without the express agreement of staff, which may not be forthcoming, the process for introducing this change can be quite complicated. 
 
You may ultimately be required to dismiss and re-engage on new terms any workers that do not agree to the change. And if this situation applies to 20 or more employees, you will be required to go through a lengthy collective consultation procedure in order to implement the new terms.
 

Andrew Crudge is a solicitor at law firm, Thomas Eggar LLP.

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Matthew Whelan

Solicitor

Read more from Matthew Whelan
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