The document discusses a company's question about closing production for extra days at Christmas without deducting from employee annual leave. The lawyer responds that if the Christmas closure was discretionary and not a formal contract term, the company can change it. However, employees could argue the closure became an implied contract term through custom and practice over many years. The lawyer advises announcing the reasons for keeping production open this year and allowing employee concerns, though employees may accept the change without legal action given it's only a couple extra holiday days.

1. Your Legal
Questions Answered
kerrie hunt
Partner & Employment
Lawyer
Thring Townsend Lee
& Pembertons
A Question of
Christmas Leave
In the past, depending on when the bank holidays fall,
we have closed for an extra day or two production
at Christmas without deducting these days from our
employees’ annual leave entitlement. This year, however,
we intend to keep production going (other than the bank
holidays). Does this cause us any problems?
Assuming that this practice has, in the past, been “discretionary”
and is not referred to in employees’ contracts or company handbook,
then you should, on the face of it, be entitled to close or open
the business during the Christmas period as you see fit. That said,
it is important to look back at previous years as staff might argue
that through “custom and practice”, the Christmas closure has,
in fact, become a term of their contracts. It will depend on what
you have done and for how many years. Have you, for example,
announced the closure each year, making it clear that it has been
decided on a year by year basis and in light of trading conditions
at the time or even, for example, simply due to when the bank
holidays fall.
Certainly, in making any announcement this year, you should
make clear the reasons why you are not closing other than the bank
holidays and it may be sensible to allow for any queries or concerns
about this to be raised. If staff felt strongly that this had become
part and parcel of their terms and conditions, they might argue that
taking away those extra days leave amounts to a breach of contract.
However, it is perhaps more likely that they will accept the change
as a sign of the times and will not be inclined to resign and assert
breach of contract and/or constructive dismissal for the sake of a
couple of days’ extra holiday at Christmas.
For details of our Employment Breakfast Briefings,
please contact Jay Grice on 01793 412506 or email
jgrice@ttuk.com.
www.ttuk.com
54 DECEMBER 2009 issuE 10 | www.sOuTHwEsTBusinEss.CO.uk