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11/10/2006

Bob Cratchit.

Prompted by a comment by Anna and my own musings, I’ve been idly wondering about incremental or seniority based increases in holiday entitlement in relation to age discrimination (and pace Cadman, sex discrimination).

Such schemes are fairly common, x years of service result in extra holiday entitlement. In principle, like incremental pay increases, such things apply to entrants to an organisation regardless of age. However, as we all know, entry age tends not to be evenly distributed at all. By and large, I would be quite surprised if a significant distinction could not frequently be drawn between an entry level age group and an older group in the same role, with a large difference in holiday entitlement. Sufficent percentages in each group could perhaps be enough, as a comparator, to argue that an incremental holiday policy was discriminatory on age grounds, regardless of how equally the policy would be applied across the hypothetical entry ages.

Arguably, the same is true of pay increments, but it could be tricky to defend holiday increments as a reward for increased experience, unlike the pay policy presumption established by the European Court. A financial reward for extra skill is clearly arguable. Extra time off may well be less so.

So, what justifications could exist for a holiday increment policy – as a defence, or perhaps to be advanced as a policy ground like that of rewarding skill increases?

The only justification I can think of is a reward for staff loyalty – sticking with the employer. But this opens a whole can of worms. Would such a rewarding of ‘loyalty’ mean that in order to justify the policy it would have to be shown that the job was a) subject to competition on retaining staff; b) retention of experienced staff was a boon to the employer (maybe tricky to stand up at grunt work level); c) even if a) and b) were established, would this be sufficient to justify a prima facie discriminatory policy as reasonable?

The other option may be to classify extra holiday as effectively a paid perk, presumably making it taxable, but effectively making it fall under the extra pay/skill formula.

Given that there was a viable argument for pay increments as discrimatory on grounds of sex (and still is, depending on the circumstances), a challenge to holiday increments would also surely be possible on sex discrimination grounds (although the time periods for increments involved tend to be shorter and less continually graduated than pay). So perhaps we await a challenge brought on grounds of sex and age.

This will be interesting. I would love to see the argument on loyalty made and then the result. I’m not wholly sure it would stand up, but what the hell do I know?

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

2 Comments

  1. anna

    Hi bob – thanks for this. I did a bit of research lastnight, including with acas and I discovered this (sorry I should have come back to post it sooner, as I’d asked the question)…
    Individuals are still able to claim extra leave so long as your employer can show that this additional holiday is a REWARD for commitment to the company NOT simply a benefit because you have gotten older. This was precisely my interpretation. Awards for long-service will also be allowed, again so long as the award is for someone’s long dedication to the company and not because they’ve just celebrated their 60th birthday.
    Your thoughts,
    thanks – Anna :-)
    (Law student – aspiring barrister, currently flying the skies with the worlds favourite ;-) )

    Reply
  2. contact

    Thanks Anna. I\’m not \’Bob\’, though. I was thinking of \’A Christmas Carol\’ on holiday entitlement for the title.

    Of course, all opinions are simply that at the moment, as the Tribunals haven\’t had a go at age discrimination yet. I\’m not wholly sure that \’loyalty\’ would stand up to a possible age and sex based discrimination claim, at least after the 5 year cut off for age discrimination, for the reasons I gave, but this just my view.

    By the way, did ACAS really say \’gotten\’? Dearie me.

    Reply

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