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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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My employer is a charity Oxfam. It gives me 6 weeks leave

Customer Question

Hi,
my employer is a charity Oxfam. It gives me 6 weeks leave in my terms and conditions.
I am a Oxfam charity shop manager and part time. I'm the only paid member of staff the rest being volunteers.
I just cannot book my holidays and go, I have to fill the gaps in the rota with my absence and any other staff who may be away at same time.
The issue is that only 60% of managers take ALL their leave because the volunteers let us down just before we are due to go away or while we are away, and then the shop taking's suffer and we get the 'guilt'.
When we complain that we can't get enough volunteers to cover there is no help. So I either go on my leave or don't and lose it.
Does Oxfam have a duty to give us the ability to take our leave as its in our terms and conditions or can they just get away with saying its down to us?
many thanks
Customer
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello there, I recognise this question :) So are they preventing you from taking the leave you are entitled to? Or are they now allowing you to take it whenever you want?
Customer: replied 1 year ago.
is that 'the' ben? its jane..
well no their not 'preventing' but as we have to rely on having enough staff to man the shop in our absence and it never works out then we often than not don't bother take it..
but Oxfam offer no support at all in helping us take our hols? last year on 67% of managers took all their leave
Expert:  Ben Jones replied 1 year ago.
Yes it's me... So is it impossible to take all your leave or just not possible to take it when you actually want it?
Customer: replied 1 year ago.
no its impossible to take 6 weeks throughout the year as there is always a problem with staffing..you may get lucky and get two weeks in the summer cos enough volunteers said they would keep shop open - but then you get back and find that it was shut one afternoon or 2 days cos no one turned up
and like me next week - i'm meant to be taking all next week off but today just had vol tell me he cant work mon or tue or wed and now looks like I'm working..
Expert:  Ben Jones replied 1 year ago.
So you cannot just take random days, single days off, here and there to use up your allowance? I am in court today so may not be able to reply straight away but will do so early this eve thanks
Customer: replied 1 year ago.
yes obviously you can if you know the shop is covered but that's hardly a holiday?
ok thanks
Expert:  Ben Jones replied 1 year ago.
Hi Jane, whilst you are entitled to a minimum number of annual leave days a year under law (28 days for a full time worker, pro rata for part time workers), there are specific rules in relation to when and how these can be taken. The Working Time Regulations state that you must give notice to the employer to take you holiday which must be at least twice as long as the holiday to be taken (e.g. you want to take 3 days holiday, you must ask the employer at least 6 days in advance). However, the employer has the legal right to reject your request as long as they give you notice equivalent to the leave requested (so in the same example they can reject your request with 3 days’ notice before it is due to be taken). So in effect you could keep applying for days off and they could reject your requests as long as the minimum notice periods are complied with. There is no need to give a reason for the rejection. Whilst it is desirable for you to take longer periods of holiday, such as a few days in a row, or more, as long as you are able to take your holidays during the leave year, even if it is in single days or a short combination of days, then the employer is not actually acting unlawfully. This is your basic legal position. I have more detailed advice for you in terms of the potential argument you can raise in relation to health and safety, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Customer: replied 1 year ago.
hi ben
sorry you are not understanding what I'm trying to tell you
as we depend on volunteers to run the shop while we take hols then if they let us down, we either not take our leave or the shop is shut
according to my contract I MUST take 28 days, but Oxfam aren't giving me the support I need to be able to take my leave?
thanks jane
Expert:  Ben Jones replied 1 year ago.
Hi, do you mean that you book a holiday and then the volunteers let down, meaning that you are unable to take that holiday?
Customer: replied 1 year ago.
well yes..if you are going abroad then you go and whatever happens happens - i.e. the shop shuts some days and then your area manager gives you a hard time for 'not having enough vols'
if you are on leave but home then your 'guilt' takes over (Oxfam rely on this) and you forgo your leave, 'cos again the shop will underperform and you will cop it
the nature of volunteers is that they are free to come and go and we have to live with that but the senior management 'think' they are all happy and willing to be the manager when youre not in!
so they tell us to take our hols and give them dates etc but when we say its impossible due to vol numbers we get nothing to help us
Expert:  Ben Jones replied 1 year ago.
Giving you a guilt trip does not mean you have to come back in to work. They can only force you to do that if they follow the specified notice periods for cancelling a holiday. So even if the shops shuts on some days because the volunteers do not turn up then you cannot be held responsible for that - you can still take your holidays as you are already abroad. If you are at home, then if the employer knows that they will need you some days in advance they can give you formal notice to cancel the holiday and ask you to come in but if it is too short a notice then they cannot and you have the right to remain on holiday even if it means the shop will be closed. If you have had all your requests rejected and are unable to take your annual holiday leave allowance then you can try and seek compensation for the lost leave. Also as mentioned I have more detailed advice for you in terms of the potential argument you can raise in relation to health and safety, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46155
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 1 year ago.
Thanks. The Health and Safety at Work Act 1974 and related statutory instruments impose a general duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees. This includes a duty to undertake risk assessments and manage activities to reduce the incidence of stress at work. In addition, under common law an employer owes a duty of care towards its employees, the breach of which can amount to negligence. So if you are working long hours and do not get many days off and this is affecting your health and you cannot take holidays to have rest and you are generally feeling stressed because you cannot take holidays then the employer may be breaching their duties under health and safety laws. This is an argument you can use if you were to make a complaint against them, such as through the grievance procedure.
Customer: replied 1 year ago.
hi ya - just got to my shop - was at the southend shop helping the manager 'cos she hasnt got ANY VOLS today!!
I get the H&S aspect as i'm the H&S rep and was thinking about this duty of care but I'm still not convinced that they are not breaching our contracts as some of us (only 67% of managers took all their leave last year) and oxfam rely on us to get cover and when its only one paid part time manager like me, its very tricky to get all the shifts covered.
anyway, there is a national shortage of volunteers and they are spending £60k on two 'volunteer recruiters'
again Ben, if there is no one to cover my rota and oxfam arent providing paid cover then arent they responsible for 'not allowing me my stated leave'?
Expert:  Ben Jones replied 1 year ago.
this will only become an issue i you are not allowed to take your leave by the end of the year. But there has to be a total refusal, not just refuse to allow you the days you would prefer to take off. So if they allow you to take the allowance at other times, even if they are not your preferred dates, they are still allowing you to take your leave so there is no breach
Customer: replied 1 year ago.
they are telling us to take our leave in fact making us put dates on calendar but...like me next week ive booked from this sat to next sat off but im now unable to take it because there are no volunteers to cover my shifts therefore the shop can't open and therefore its either me not taking my leave or getting a hard time cos I havnt got sufficient vol numbers?
Expert:  Ben Jones replied 1 year ago.
They may give you a hard time but they will find it difficult to take formal action as a result, such as dismissal, so it may just have to be something that you have to accept is part of the job unfortunately
Customer: replied 1 year ago.
ok - could they use the 'performance improvement plan' tactic as a way of saying youre not fulfilling your duties to recruit and train enough capable, willing and above all competent volunteers and then start the usual slide down the disciplinary route?
or could like you say use the H&S route with them if they try to pressure me?
Expert:  Ben Jones replied 1 year ago.
If getting vols is a specific performance criteria then yes, but they can't just rely on that in terms of not being able to cover holidays. But the H&S route is always available as a potential argument if needed
Customer: replied 1 year ago.
well getting more vols is always top of performance criteria for 99% of shop managers...what do you mean by 'they can't just rely on that'? btw oxfam are the only charity that pay p/t managers and have full time managers without deputies..
Expert:  Ben Jones replied 1 year ago.
What I meant is that they cannot rely on the volunteer issue if it is only problem in terms of covering your holidays, but if this is a separate performance criterion then it can be used in performance management
Customer: replied 1 year ago.
let me get this right so i cant be prepared if i take my hols next week and shop is only open sporadically -
so I can say unless my line manager has OTHER issues about my performance she cannot use the lack of vols against me?
Expert:  Ben Jones replied 1 year ago.
not quite - basically they cannot say that they can use the lack of vols against you JUST because it means your holidays cannot be covered or you cannot take holidays. But if there are other reasons about it, such as performance targets, opening times (ignoring holidays), etc then it can be used as a performance matter
Customer: replied 1 year ago.
I'm sure you are getting fed up with me and my particular problem!
so if the shop isn't hitting target and I take my hols and obviously the shop takings will suffer, as is the nature of the beast when the manager is not in, I can be held accountable for poor sales although I'm taking my booked leave knowing that there will be times that the shop may be shut?
Expert:  Ben Jones replied 1 year ago.
The issue is you are looking for an answer which is not actually defined in law anywhere. Yes, that is possible. Yes, that may be considered unfair, but in the end it is something you can challenge if necessary. the issue with such cases is that it would come own to a tribunal to decide whether it was fair or not and one judge on one day can come to a different decision to another judge on another day. As you say that is the nature of the beast and the same applies to tribunals. So what I have been discussing is a general fairness aspect as it should be seen generally in employment law but it is not in black and white and as such it is subject to interpretation
Customer: replied 1 year ago.
Ok, Ben, that is where we are at with this issue. I might one day think bugger this and take oxfam to tribunal for the issue, but don't you have to go to Acas first? what would be your advice as to the relevant? breach..contract and or unfair/unworkable working practices? or something else?
Expert:  Ben Jones replied 1 year ago.
yes you do have to go to acas, but it's free and they basically negotiate between you an the employer. So yes it would be breach of contract and to be honest you are only looking at constructive dismissal as well but you have to resign first to claim that
Customer: replied 1 year ago.
Thanks Ben, I have at least got something sorted in my head now. They are failing in their duty of care so badly with managers of with work induced stress and exhaustion, but only very few realise that they are breaching their duty. But I do. HA HA.Enough of this now. Have I used my allowance now?
Jane
Expert:  Ben Jones replied 1 year ago.
There is no formally monitored allowance as such but Each question should be on a specific topic and if it becomes too long we can ask it is continued separately. Assuming we are finishing off this topic now then no issues on allowances etc. Thanks
Customer: replied 1 year ago.
So I can still ask you stuff on other things at sometime?
Expert:  Ben Jones replied 1 year ago.
Yes of course but you will have to post them as a new question. In fact if you need ongoing advice there is a subscription option where you can ask many question for a monthly fee - have a look on your account for the options
Customer: replied 12 months ago.
hi ben,
me again - this is happening right now.. manager can't take her leave as she has a minimum amount of vols - she was due to take the last week of march and her line manager knows she's working everyday 6 days a week amounting to around 38hrs but paid 24hrs -
the line manager's response is 'phone the job centre' / 'get more vols' - but nothing else -
so if she takes next week shop will be shut 3/4 days? what do you advise?
Expert:  Ben Jones replied 12 months ago.
It' a Catch 22 in a way - if she takes the leave, then the shop shuts. That is not in itself unlawful and can happen. However, it may in turn place her in the firing line if her performance appears inadequate in terms of getting more volunteers. As mentioned she cannot be penalised just because she is taking the leave, but other factors can be taken into account, such as not having enough volunteers. But that in itself is not a reason for dismissal for example, there has to be an ongoing performance procedure before it is even considered. So it is a difficult one - she can take the leave unless the employer refuses to authorise it which they are perfectly entitled to do, but that may in turn cause performance issues if she is deemed not to be performing well in relation to getting volunteers
Customer: replied 12 months ago.
wow..rock and hard place come to mind..ok get it - our line manager said to me today that she should shut as then it means the shop really needs more support and they can target it..so she's being somewhat supportive but think the H&S laws have been used against them recently..
thanks ben x
Expert:  Ben Jones replied 12 months ago.
You are welcome
Customer: replied 11 months ago.
hi ben! hope you had a nice break?
ive got a letter telling me that I've been derogatory about my colleague..and to adhere to the rules etc..
I spoke with a NEW person who's been brought in at a cost of £30,000 to recruit us more volunteers in the next 6 months, and when I saw her in the loo (we were at area meeting) I introduced myself (union shop rep) and told her that the 'volunteer manager' of 7 years, sitting in office in Oxfam house, has not done anything to help us shop managers, and that he is failing that's why you've been hired..
guess what..she repeated it to my line manager! and now I've got the behave yourself letter..
that was my perception and the perception of my colleagues (as we never see him) and i'm now being punished?
can I fight back?
Expert:  Ben Jones replied 11 months ago.
Hi Jane, yes thank you, ***** ***** a nice and relaxing weekend escaping the weather at home, hope yours was good too. If you have a question on a new topic then please submit it as a new question as the site requires that, many thanks
Customer: replied 11 months ago.
ok.. of course think ive answered it myself - keep my mouth shut!
Expert:  Ben Jones replied 11 months ago.
In short, yes - you are entitled to your opinions but try to keep these to yourself or people you trust especially when they may be seen as derogatory to others.
Customer: replied 11 months ago.
They're always derogatory about my useless superiors! Lol
Expert:  Ben Jones replied 11 months ago.
that may be the case but they are the ones who have the power and can take decisions against you so best to avoid that
Customer: replied 11 months ago.
yes mouth shut from now..funny how we all say the same thing to each other but I misjudged the pc newbie..
Expert:  Ben Jones replied 11 months ago.
yes she may have her own agenda, she may wish to get on management's side as the new one, you never know what people are like so that's why it is best to suss them out first before trusting them with certain information
Customer: replied 11 months ago.
yes that's certainly a lesson ive learnt - thanks ben as usual you are the voice of reason!
Expert:  Ben Jones replied 11 months ago.
you're welcome
Customer: replied 11 months ago.
Hi Ben, me again..guess what - I booked this week off with my line manager and had the shifts covered...but get phone call on Wed morning 'can't come in i'm sick', so my line manager is on leave (easy for her) and I made the decision to go to shop as other vol can't/wont use the till and can't be working alone..
then last night another call - husband ill and obviously can't be left? so today this afternoon i'm going to work..
have end of year review tomorrow with aforementioned line manager, who will only tell me to get more volunteers, no effective support coming through from management..Should I take out a grievance as i'm not getting my 'rest and recuperation'? and it can't be all one way!
Expert:  Ben Jones replied 11 months ago.
Hello, thanks for getting back to me. Unfortunately your question has expired as you must post any follow up queries within 7 days of the date of the original question. If you need any further help on this subject please post it as a new question on our site - you may start it with 'for Ben Jones' so that I get it and deal with it as fast as I can. Many thanks
Customer: replied 11 months ago.
oh bugger! can't pay again..never mind - thanks Ben
Expert:  Ben Jones replied 11 months ago.
Sorry I have to follow the site rules...But to give a very brief answer, you could not be forced to come into work if it was already booked off, if you had to and you genuinely felt it was encroaching on required rest time then yes, follow the grievance route
Customer: replied 11 months ago.
many thanks x
Expert:  Ben Jones replied 11 months ago.
No worries

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