employees should not bank on bank holidays off…
17 March 2011
With just over a month to go before the Easter bank holidays and
with the addition of an extra bank holiday for the Royal Wedding on
Friday 29 April, employers will no doubt have received an influx of
holiday requests for this period as those working a 5-day week will
now have two consecutive 4-day weekends and could take an 11-day
break using just three working days holiday.
2012 will also have an additional bank holiday. The late May
bank holiday has been moved to Monday 4 June and an additional bank
holiday on Tuesday 5 June will mark the Queen’s Diamond
Jubilee.
The assumption is that employees will be entitled to take this
time off and so it is good news for them but bad news for employers
facing additional holiday requests or having to bear the cost of
giving employees additional days off…
Or is it?
There is no statutory obligation for employers to give paid time
off on bank holidays or additional pay or time off in lieu if
employees are required to work them. The Working Time Regulations
1998 require employers to allow full-time workers the minimum
annual leave of 28 days (inclusive of bank and public holidays).
Any right to additional pay or time off for working on a bank
holiday is governed by the employee’s contract. Some examples are
as follows:
‘20 days plus bank holidays’
The employee
will be entitled to have the additional bank holidays as holiday
(or depending on the terms of the employment contract an additional
day in lieu). If the contract says ‘normal or usual’ bank holidays
then there may be an argument that they are not entitled to bank
holidays in addition to the usual eight.
‘28 days including Bank Holidays’
The
announcement of the additional bank holidays will not increase
employees’ overall holiday entitlement. So if they want an
additional bank holiday, they will have to use one of their 28
days’ annual leave and depending on their contract, may need
permission to take it as leave.
Employers intending to shut down the workplace on the bank
holidays would have to check their contractual rules regarding
entitlement on ‘shut down days’. Some contracts include provisions
entitling employers to dictate when employees take their holiday,
in which case employers may require employees to take these out of
their annual leave entitlement. Depending on what the contract
says, employers will probably have to give them notice of this.
Part-time workers will have to be treated consistently with full
timers but their holiday entitlement will be pro-rated.
Absenteeism around this period could become a problem and
employers may wish to remind employees of their policies on
unauthorised absence, sickness reporting procedures and the
disciplinary consequences of a breach ahead of the bank holidays.
The use of return to work interviews could dissuade employees from
falsely reporting sickness absence.
Potential implications of a refusal
Employers who intend to remain open on the additional bank
holiday may be faced with a deluge of holiday requests. If there
are too many, the employer may have to reject some. They must
ensure that they apply a fair and uniform policy such as ‘first
come first served’, but even that may be challenged if the
notification that some holiday requests may be refused arrives
while someone is on holiday or absent through sickness. Legal
challenges would probably be based on discrimination or
constructive dismissal.
Discrimination claims are highly unlikely to succeed if some
objective rule is applied, such as ‘first come first served’. It
could only be discriminatory if, for some reason, that rule affects
one protected group more than another, e.g. if the notification of
the requirement to apply is distributed to men before women.
Constructive dismissal claims are also unlikely to succeed,
unless somehow a tribunal is persuaded that the way the rule was
operated was specifically targeted so as to disadvantage a
particular individual.
Employers are advised to check employment contracts to decide
how they are going to deal with the additional bank holidays.
Obviously we appreciate there are factors other than strict
legal entitlements which employers will need to take into account;
relations with staff, morale, whether employers would like their
employees to celebrate the wedding. But it would still be helpful
for employers to clarify to their employees, well in advance, how
they are planning to handle the extra bank holidays, for
example:
- will the workplace be kept open?
- if an employee works on the bank holiday, what overtime pay, if
any, will they get?
- will all holiday requests be granted, or will it be on a ‘first
come first served’ basis?
- will the bank holidays be treated as additional to everyone’s
normal entitlement or come out of their annual leave
entitlement?
If an employer is planning to give employees the day off even
though the contracts of employment do not require them to do so, it
would be worth subtly making that clear to employees, for
example:
‘In view of the extra bank holiday on 29 April to celebrate
the Royal Wedding, for this year only we are increasing everyone’s
holiday entitlement to 29 days. That means the bank holiday on 29
April will still leave you with all the usual eight bank/public
holidays and your usual 20 days’ annual leave.’
Clarifying that this is for 2011 only also has the advantage of
avoiding setting any sort of precedent, in case future governments
get the idea that they may increase their popularity by announcing
extra bank holidays.
The content of this bulletin is provided for the purposes of
general interest and information. It contains only brief summaries
of aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.