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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
Satisfied Customers: 48190
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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my employer has changed my leave dates because i am taking

Customer Question

my employer has changed my leave dates because i am taking paternity leave, i would have been due to be at home for christmas on my rotation but cause i am taking paternity leave they want me to bring my leave forward to add on to my paternity leave. this now makes me fall short of been back in the u.k for xmas, my work rotation is 12 weeks on and 3 weeks off, i will now have to complete extra time to be eligible to be home for xmas, i was unhappy with this decision and i would rather resign than complete 14 weeks, my boss said i have to do the extra time to get xmas or resign, is this grounds for constuctive dismissal?
Submitted: 5 years ago.
Category: UK Employment Law
Expert:  Ben Jones replied 5 years ago.

Ben Jones :

Hello and thank you for your question, which I will be happy to assist you with. Please let me know how long you've worked there?

JACUSTOMER-x56k60n7- :

i ahve bee working for 2 years

Ben Jones :

Thanks for this information. I need to go offline for a while but I will be able to pick this up later if thats OK?

Ben Jones :

The starting point is that under law (Working Time Regulations) an employer has the right to decide when its employees take their statutory holiday entitlement. All they would be required to give is appropriate notice, which must be at least twice as long s the leave to be taken. So if the leave to be taken is 10 days, the employer's request must be received at least 20 days before the leave due to be taken. So they are legally entitled to make such a request.

There is no discrimination issue here because there is no discrimination on grounds of paternity, only on grounds of gender or pregnancy, which is not the case here.

In terms of constructive dismissal, this occurs when the following two elements are present:

  • Fundamental breach of contract by the employer, which must be sufficiently serious to justify the employee resigning;
  • An acceptance of the breach by the employee, who in turn treats the contract of employment as at an end. The employee must act in response to the breach and must not delay any action too long.

The key here is that what the employer has done is something they are entitled to do in law so whether it is a fundamental breach of contract, when you have been given plenty of notice, could be difficult to show.

You may still raise a grievance over this and even resign, but pursuing a successful claim may be difficult.

Please let me know if you need any further help with your query. If you do not, I would be grateful if you could please press Accept before exiting, many thanks.