We are all getting used to the idea of extra bank holidays – 29 April was an extra one last year, for the Royal Wedding, and this year there will be an extra one to celebrate the Queen’s Diamond Jubilee, which will be on 5 June. The usual late May Bank Holiday is being moved – for one year only – to 4 June to create a long weekend of celebrations.
Last year for the Royal Wedding Bank Holiday we were inundated with queries from employers and employees on what their rights and obligations were as far as the additional day was concerned (our article, which was featured in People Management magazine, can be viewed here).
The issue comes from the fact that employees often mistakenly believe they have a right to a day off on a bank holiday.
In England and Wales there is no automatic right for an employee to have the day off on a bank holiday – whether they can or not will depend on their contract of employment. In the same way, if employees do work on a bank holiday their pay for the day will depend on their contract, as there is no statutory right to overtime or time off in lieu.
The statutory minimum holiday entitlement under the Working Time Regulations 1998 has increased over the past few years and currently stands at 5.6 weeks a year. This equates to 20 days plus the usual eight annual bank holidays for most full-time employees, and employers should have adopted wording to reflect this in their written contracts of employment.
So what does this mean for the Diamond Jubilee? Well, the position may depend on the exact wording of a contract. If, for example, it says that the holiday entitlement is “23 days plus bank holidays” then the employer is likely to have to give the employee a day’s paid leave on 5 June.
If, however, it says “28 days including bank holidays” then there will be no extra entitlement. The wording will vary from organisation to organisation – last year we found there were some contracts of employment that actually listed the specific Bank Holidays, and obviously as this did not include the additional one, employers were not necessarily obliged to give it to staff (although many chose to do so anyway). Here the fact that the late May Bank Holiday is also being moved may create some additional confusion. The position may also depend on whether your organisation plans to be open on the Jubilee Bank Holidays – clearly organisations which need cover will not be able to let all staff have the day off.
Issues are particularly likely to occur where part-time employees have holiday entitlement rounded up to allow for their pro-rata bank holiday entitlement. As an example, full-time five-day week employees might get 20 days plus eight bank holidays at an organisation, while three-day week employees get the pro-rata equivalent – 14.8 days inclusive of their bank holiday entitlement. This is fairly common and it means that when a bank holiday falls on a day when part-timers would normally be at work, they have to use some of their rounded-up entitlement to take the time off. The problem is that because these arrangements include bank holidays, there will be no extra entitlement on 5 June, whereas full-time staff are generally more likely to have an arrangement where bank holidays are on top. Employers might find that part-time staff complain they are being treated less favourably, in which case the employer will have to consider offering more leave in order to avoid claims – while it is fairly unlikely that a claim would come from this issue on its own, it might be used in combination with other points.
As always, the best advice for employers is to be prepared – check your contracts of employment and take advice as appropriate.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team 01243 836840 or [email protected].