Can you reduce your employees holidays?

It was reported by the BBC on the 16th May 2013 that Paolo Di Canio had “threatened to reduce his players holidays should they not perform “with dignity” in their final game”.


Effectively Mr Di Canio was saying that rather than allowing his players the usual five to six weeks, he would reduce their holiday to the minimum 4 weeks.

In the UK, the Working Time Regulations 1998 allows workers the right to take 5.6 weeks paid holiday in each leave year, which is inclusive of bank holidays.

On that basis it would be difficult to see how Mr Di Canio could reduce his players’ holiday to just four weeks, as he would be in breach of the Working Time Regulations 1998.

What employers must be aware of however is that an employer’s right to holidays should be fully detailed in their contract of employment, particularly if it is the employers’ intention to allow them more than the minimum 5.6 weeks.

If more than 5.6 weeks holiday is being given then any reduction in holiday would result in the employee being able to make a claim either in the County Court or the Employment Tribunal. It is also possible that because it would be such a significant breach of contract that employers could also face a claim for constructive dismissal.

In any event employers should make sure that they have adequate policies and procedures in place detailing how applications for holidays should be made, in what circumstances holiday requests may be refused and clear details as to whether holiday can be carried over to the following leave year. If all holiday is not used, employers should not make payments to employees in lieu of holiday that has not been taken.

Compulsory Retirement?

Last week our blog looked at the general points that employers should consider when the question of retirement arises. One important question is whether a compulsory retirement age should be included in any policy.


Until the 6th April 2011 there was, what was known as the “default retirement age” of 65, which meant that compulsory retirement of employees at or over 65 was permitted. Now however compulsory retirement age must be objectively justified.

This means that it is not impossible to still retire employees at 65, provided that 65 is an appropriate age.

There is a general assumption that if performance declines with age, whether that be due to competence or health, however those points on their own are not sufficient to justify a retirement age. There have certainly been a number of people who have been able to hold down high profile well after this age. For example look at Sir Alex Fergusson managing a successful Premier League side until the age of 71, when some would argue that due to the stress involve in that type of work, a retirement age of 65 would be justified.

The big question is what can justify a retirement age and this is something that has been looked into by the Courts in great depth.

In particular the case of Seldon v. Clarkson, Wright and Jakes found that there had to be proportionate and legitimate aims in setting a retirement age.

Seldon was the former partner in a solicitors firm who imposed a retirement age of 65 on their partners. The firm put forward 6 legitimate aims which included;

1 Ensuring associates were given the opportunity of partnership after a reasonable period as an associate, thereby ensuring that associates do not leave the firm;

2 Facilitating the planning of the partnership and workforce across individual departments by having a realistic long term expectation as to when vacancies will arise;

3 Limiting the need to expel partners by way of performance management, this contributing to a congenial and supportive culture in the Respondent firm.

Perhaps unhelpfully, even tough this matter has gone all the way to the Supreme Court, there was no decision as to whether 65 was in fact the correct age. The implication of the case however is that provided there are legitimate aims that can be justified and supported by the employer then a retirement age will be capable of being enforced.

Overall employers should still treat compulsory retirement with caution and should instead try to adopt a much more flexible approach to retirement without any need to set ages.

Any issues with work carried out could be dealt with through the capability policy and procedures and illness and general health issues could be dealt with through an appropriate sickness absence policy, both of which all employers should have in place.

Are you ready for your Sir Alex, Paul Scholes or David Beckham moment?

In the last week there have been three very notable announcements of retirement. Sir Alex Ferguson and Paul Scholes will both retire from Manchester United and football in general on the 19th May 2013 after Manchester United have played West Brom. David Beckham has recently announced that he too will be retiring from professional football at the end of this season.

It is inevitable that an employer will have people retire, but the difficult part is making sure that there are proper procedures in place to deal with retirement.

There are many things that employers need to be aware of regarding retirement. Generally when employers are considering what points to include in their retirement policy and procedure, they should think about the need to include a compulsory retirement age, the way in which any discussions regarding employees plans for the future will be conducted to ensure that there can be no allegation of discrimination for example on the grounds of sex or age, and indeed, the notice provisions that will be required.

Requiring an employee to give as much notice as reasonably possible is crucial and would allow for appropriate planning. Certainly with any manager or senior employee such as Sir Alex Ferguson, the steps needed to ensure that a replacement is found need to be taken swiftly to ensure that the right candidate is recruited and also to allow for a proper handover where necessary.

If a retirement age were going to be imposed then employers must make sure that the retirement age is capable of being objectively justified, something we look at in more detail another time.

For the time being however it is simply sufficient to say that appropriate planning and discussions with staff should be at the forefront of all employers minds to ensure that they are not “left in the lurch” when employees do decide to retire.