Case Studies

"If an employer provides for pro-rata bank holiday entitlement for part-time employees, how should it calculate this?"

 "What should an employer do if an older employee requests to change his or her working pattern in preparation for retirement?"

"What happens when a promoted employee does not make the grade?"

One of the most frequently asked HR questions is on part-time holiday entitlement.

"If an employer provides for pro-rata bank holiday entitlement for part-time employees, how should it calculate this?"

Because most bank holidays fall on a Monday or Friday, part-time employees who do not work on these days could be entitled to proportionately fewer days off compared with full-time employees, depending on shift patterns and annual leave arrangements within the organisation.

Employers must ensure that all employees have at least the statutory minimum annual leave entitlement and that part-time employees are not treated less favourably than full-time employees. To avoid a complaint of less favourable treatment under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) many employers provide part-time employees with a pro-rated bank holiday entitlement.

While there may be no arrangement that will have entirely fair results for all employees whatever their working pattern, one option is to calculate pro-rated bank holiday entitlement according to the number of hours that the part-time employee works, irrespective of whether or not he or she works on the days on which bank holidays fall.

For example, if full-time employees are entitled to eight bank holidays a year, in addition to their normal annual leave entitlement, a full-time employee working a five-day week of 37.5 hours would be entitled to 60 hours of leave on bank holidays (ie eight days of seven and a half hours). A part-time employee working a three-day week of 22.5 hours would be entitled to a pro-rated bank holiday allowance of 36 hours (22.5 ÷ 37.5 x 60). Calculating an hourly entitlement has the disadvantage of potentially resulting in an employee working for, for example, only one or two hours on a particular day.

The employer should allow the part-time employee to book the 36 hours’ pro-bank holiday entitlement as annual leave under the organisation’s normal procedure. If the employee is scheduled to work on any bank holiday, he or she would have to book this as annual leave to take the day off. If the business is closed on bank holidays, the employer could require the employee to take annual leave if he or she is scheduled to work on these days, by including this in the employee’s contract or giving the appropriate notice.

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"What should an employer do if an older employee requests to change his or her working pattern in preparation for retirement?"

The statutory right to request flexible working applies only to employees who have certain caring responsibilities, for the purpose of carrying out those responsibilities. Employers do not have a statutory duty to consider a request from an employee to change his or her working pattern if the purpose is to prepare for retirement.

However, employers should consider having a policy to consider requests for flexible working from all employees, not just those who are eligible to make a statutory request. Employers should recognise the benefits of allowing older employees to change their working pattern in preparation for retirement. For example, this may enable the employee to continue working for a longer period, while maintaining his or her productivity or performance, or may facilitate a handover of his or her responsibilities.

Employers should avoid having a policy of favouring older workers over younger workers when it comes to agreeing to requests for flexible working patterns, as this could constitute unlawful age discrimination, unless the employer can justify it objectively.

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"What happens when a promoted employee does not make the grade?"

Managers should give careful consideration as to an employee's suitability for promotion in the first place, and make sure that the employee is given adequate training before the promotion takes effect.  Just because an employee is a competent technician, accountant or secretary, for example, does not mean that he or she will be a competent supervisor of staff. The skills and knowledge needed for the promoted post may be quite different to those that the employee is accustomed to using in his or her current post.

The principles for handling a situation where a promoted employee fails to make the grade would be the same as for any other lack of capability situation, with the individual being granted a full and fair opportunity to discuss the problem areas without being blamed for the fact that he or she has not succeeded in meeting the standards required in the new job.

Where a promoted employee continues to fail to reach the standards required in the new job, the employer is not under an obligation to offer the employee his or her old job back, unless there is agreed provision for this. Such a move could, in any event, create other problems if, for example, someone else has been appointed to the post left vacant by the promoted employee.

Nevertheless, a way out of the problem may be to offer the employee an alternative position elsewhere in the organisation if this is possible and if the move is acceptable to the employee. The manager should discuss all the available possibilities with the employee concerned.

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