Can my employer make me work on holidays if I can’t get childcare?
Yes. There is no right to time off on seasonal or public holidays. Employers often offer public holidays off, but they do not need to. Public holidays can be included in your annual leave entitlement.
If you would normally work on holidays, then time off needs to be booked in the usual way. Leave can be refused, though your employer would have to allow you to take the leave at another time.
What to do if your employer refuses you time off and you can’t get childcare
If you are refused time off, and you cannot work because of childcare, it is not a good idea to simply not turn up to work as this may be treated as unauthorised absence and your employer may discipline you. If you can’t find childcare, then you should make every effort to make alternative arrangements. If you still can’t make arrangements, you can consider the following options.
Check your contract
If you have requested annual leave, and your employer has refused it, the first thing you should do is to check your employer’s annual leave policy to ensure that they have followed it in handling your request. Also ensure that they have given you as much notice as the time off that you want to take. For instance, if you want to take 3 days of leave, your employer should give you at least 3 days’ notice that they are refusing your request.
Consider taking Parental Leave
You can take unpaid parental leave if you are an employee, have a child (or children) under 18, and have worked for your employer for at least one year. You can take 4 weeks per child per year, up to a maximum of 18 weeks per child.
Parental leave is a form of statutory leave (like maternity or paternity leave) and must be taken in one-week blocks. If your child is disabled and on Disability Living Allowance or Personal Independence Payment, you can take it in blocks of one day.
Strictly speaking, you need to give 21 days’ notice to take unpaid parental leave. Your employer cannot deny you your right to take parental leave and cannot change the amount of leave you are requesting. However, your employer might be able to postpone parental leave for up to six months if there would be a serious disruption to the business. So it is important to plan ahead when booking parental leave.
Consider whether you can take Time Off for Dependants
If your employer has followed their policy and given you a correct amount of notice, and you cannot give proper notice for Parental Leave (or your employer postpones the leave), the next step would be to speak to your employer and explain the difficult situation you are in. If you have tried to find childcare, but cannot, explain everything that you have done to find childcare to your employer. Also explain what the consequence would be for you coming to work – for instance, you may have a young child who cannot be left at home unsupervised. Also try to appeal to their human side, you may be in an impossible situation having to choose between work and caring for your child.
If you have no other options, and the leave is necessary, you may be forced into taking Time off for Dependants. Time off for Dependants gives employees the right to take a reasonable amount of unpaid time off work to take necessary action to deal with particular situations affecting their dependants.
If you knew about a situation beforehand, this would not normally be covered by time off for dependants. However, knowing in advance that something will happen does not mean that you definitely cannot take time off, so long as the time off is necessary. In the case of Royal Bank of Scotland plc v Harrison, the Employment Appeal Tribunal found that a mother who had two weeks’ notice that her childminder would not be available, and who had tried but was unable to make alternative arrangements for her children, had taken Time off for Dependants when she was absent from work.
Request flexible working
You can negotiate a reduction in hours, or a working pattern that doesn’t require work on holidays, if this would allow you to balance work and childcare. If your employer does not agree to your informal conversations, you can put in a formal flexible working request.
Your employer has three months to make a decision and could refuse if it would have a detrimental impact on their business. You should also bear in mind that if successful, your flexible working request will result in a permanent change to your working conditions, so if you only want the change to be temporary, you should make this clear in your request.
When a refusal for time off might amount to discrimination
If you are a woman, you may have an argument of indirect sex discrimination. You’d have to show how the refusal disadvantaged you, and explain why you thought the refusal wasn’t necessary. If your employer can justify making you work on those days, because they can’t run their service without you, the discrimination may not be unlawful.
Otherwise, it’s possible in some cases there could be direct discrimination, but only if you didn’t get the time off because of a protected characteristic. For example, if you’re a man, and a woman doing your job would be given the time off, you may be able to argue that you’ve been refused leave because of your sex or gender.