Managing Christmas Leave Q & A

25^th December is on a Sunday this year. Therefore, the public holiday is transferred to the Tuesday because the Monday (26^th) already has a public holiday (Boxing Day) occurring on it.  If however the employee’s normal working day is a Sunday, that is when the public holiday is for them – it does not get transferred to the Tuesday. Employees get a maximum two public holidays for Christmas and two more for New Year.

It depends. I know, that’s not particularly helpful, so here is the explanation. If you have an annual closedown, that is a closedown that happens every year and all or part of the business closes and it is specified in the Employment Agreement, then the only requirement is to confirm the date of the closedown to those affected, at least 14 days before the first day they must take leave.

If you do not have an annual closedown as described above, but you want your employees to take annual leave over the Christmas period, then you must in the first instance try to reach agreement with them. Only after you have tried to genuinely reach agreement, can you then give 14 days’ notice that the employee must take annual leave. It is important to note you can only require an employee to take leave entitlement (as opposed to accrued leave or leave in advance).

Section 18(3) of the Holidays Act provides: “When annual holidays are to be taken by the employee is to be agreed between the employer and employee.”

Section 19 which provides that: “(1) An employer may require an employee to take annual holidays if- (a) the employer and employee are unable to reach agreement under section 18(3) as to when the employee will take his or her annual holidays; … (2) If subsection (1) applies, an employer must give the employee not less than 14 days’ notice of the requirement to take the annual holidays.”

Section 73  states that “an employer and employee must deal with each other in good faith.” So please don’t pay lip service to the attempt to reach agreement.

Because this year both Christmas Day and New Year’s Day fall on a Sunday, Christmas Day is being observed on Tuesday 27 December and New Year’s Day on Tuesday 3 January. If the Public Holiday that falls on the Sunday or Tuesday is ordinarily a working day, but the employee does not work then they are paid for that Public Holiday at their relevant daily pay. 

However, Christmas Day and New Year’s Day are not transferred if the employee ordinarily works on a Sunday. It is observed, and paid for, on the day it falls.

If the employee who ordinarily works a Sunday also works on Tuesday 27^th December, the Tuesday is a normal working day for them, and they are not entitled to time and a half or a day in lieu (alternate day).

If the employee does not normally work on the Public Holiday, in this case the Sunday or Tuesday, then they do not get paid at all for those days. For example, someone who usually works Monday to Friday but not Saturday or Sunday would be paid for the Tuesday whether worked or not, as detailed above, but not paid for the Sunday.

If the employee does not narmally work on the days the Public Holiday falls but then does work on those days, they are entitled to be paid time and a half for the hours they work, but are not entitled to an alternative day off (lieu day).  

For the three hours the employee worked they get paid time and a half and they get a day in lieu (alternate day). The day in lieu is a full 8 hour day, not a 3 hour day. The employee is also paid the remainder of their hours for that day (i.e. 5 hours) at their normal rate. This is because the employee’s Employment Agreement states their ordinary working day is 8 hours, and they are therefore entitled to be paid for 8 hours.

If you require further information regarding paying employees for statutory holidays, or requiring employees to take leave, please call us to speak to one our consultants.