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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Can a company take all your holidays away from you?They

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Can a company take all your holidays away from you? They have put us on 6 on 6 off. Average 42 hours a week. Thet say our holidays are in our 6 off?? Surely this is not right?

We work 12 hours shifts

Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. How long have you worked there for and what was the arrangement before this change?
Customer: replied 1 year ago.

Over two years. We did 6 on 9 off with a 21 day break in the summer. We are a 5 shift system and they want to get rid of a shift and go to 4. We did 147 shifts per year. Now they say 6/6 rigid, with no holidays.

We keep reiterating that we average 42 hours a week. How can they class our 6 days off as our holiday entitlement.

Furthermore, we cannot find any company in the UK that do this? Surely we are not the first test case in the UK? If this is legal, the implications for industry nationwide is bleak. Thanks

Customer: replied 1 year ago.

What do you think?

Expert:  Ben Jones replied 1 year ago.
The issue is that the law allows employers to choose when their employees take their holidays. So for example, they could nominate when all of your annul leave is taken as long as they give you sufficient notice of that, with such notice being at least twice as long as the holiday to be taken. So for example if they want you to take a day off on a specific day they must give you at least 2 days’ notice. Alternatively they may incorporate that notice in your contract and state when your holidays are to be taken over the year and the notice would be satisfied. So it is possible for the employer to state when you take your holidays and force that on specific days. What you could actually challenge this over is the fact that it amounts to a change to your contract. There are a few ways in which an employer may try and make changes to an employee’s contract of employment. These are by:· Receiving the employee’s express consent to the changes.· Forcefully introducing the changes (called 'unilateral change of contract').· Giving the employee notice to terminate their current contract and then offer them immediate re-engagement under a new contract that contains the new terms. If the changes are introduced without the employee's consent, then the following options are available: 1. Start working on the new terms but making it clear in writing that you are working ‘under protest’. This means that you do not agree with the changes but feel forced to do so. In the meantime you should try and resolve the issue either by informal discussions or by raising a formal grievance. 2. If the changes fundamentally impact the contract, for example changes to pay, duties, place of work, etc., you may wish to consider resigning and claiming constructive dismissal. The resignation must be done without unreasonable delay so as not to give the impression that the changes had been accepted. The claim must be submitted in an employment tribunal within 3 months of resigning and is subject to you having at least 2 years' continuous service. You would then seek compensation for loss of earnings resulting from the employer's actions. 3. If the employment is terminated and the employer offers re-engagement on the new terms that could potentially amount to unfair dismissal. However, the employer can try and justify the dismissal and the changes if they had a sound business reason for doing so. This could be pressing business needs requiring drastic changes for the company to survive. If no such reason exists, you can make a claim for unfair dismissal in an employment tribunal. The same time limit of 3 months to claim and the requirement to have 2 years' continuous would apply. Finally, it is also worth mentioning that sometimes employment contracts may try to give the employer a general right to make changes to an employee’s contract. As such clauses give the employer the unreserved to change any term, so as to evade the general rule that changes must be mutually agreed, courts will rarely enforce such clauses. Nothing but the clearest language will be sufficient to create such a right and the situation must warrant it. Any attempt to rely on such clauses will still be subject to the requirement of the employer to act reasonably and can be challenged as above. I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Customer: replied 1 year ago.

The government website states, that on equal time shift pattern 4/4, 6/6 8/8 etc we are entitled to 19.6 shifts off, rounded up to 20 shift per year.

My company are saying that because I will work half the year ie 182 shifts, My holidays are somewhere in the 182 I am off.

My weekly average is 42 hours over a 17 week period or 12 month period. This surely can't be right???

I used to work 4/4 and 8/8 and got holidays in previous employment.

My company have upped my shifts from 147 to 182.

Put it this way.....Day staff get 25 eight hour days off. Its like saying they have to work every Saturday for a year with no holidays.

There is no company in the UK that do this rota.

Thanks

Expert:  Ben Jones replied 1 year ago.
What the employer is proposing can be legal because you are still getting time off and getting paid for it, even if it falls on days specified by the employer. But the issue here is not this but that the employer has decided to completely change your shift pattern against your current contract. So it is the change of contract and shift pattern and the increase in shifts which you are challenging and which should be done by following the steps I outlined above.
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46170
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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