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Retail: 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.

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The content on this page 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.

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