Additional bank holidays – What’s an employer to do?

Following the death of the Queen, a last minute bank holiday was announced for the day of her funeral on 19 September. This was the second additional bank holiday this year, the other being for the Queen’s Platinum Jubilee in June.

While additional bank holidays are no doubt greatly appreciated by many, they do put organisations into a bit of a predicament. On the one hand, employers need to make sure they treat employees fairly but, on the other, some organisations may not be able to afford to close for a day and pay their employees for the time off.

It is possible that there will be another additional bank holiday in 2023 for the King’s Coronation. Even though we now know that the Coronation will take place on a Saturday, the possibility of a bank holiday has not been ruled out, so this is an issue that may well arise again in the near future.

In this article, we answer some of the key questions about employee entitlement to time off for additional bank holidays.

Is there an automatic right to time off?

No. As with all other bank holidays, there is no statutory entitlement to paid time off. Whether an employee is entitled to time off on a bank holiday will depend on the wording in their contract of employment.

When does an employee have a right to the day off?

If the employment contract states that the employee’s annual leave entitlement is a certain number of days “plus all bank and public holidays”, the employee will be entitled to the additional day off.

When does the employer not have to grant the day off?

Where an employment contract specifically stipulates that an employee has a certain number of days off “plus the eight bank holidays”; “the usual bank holidays” or specifies which bank holidays are included, there will be no contractual obligation on the employer to grant an extra day’s leave, although many employers will decide to allow the time off in any event.

What are the options for managing those who are not contractually entitled to the additional bank holiday?

• An employer could close and grant employees an additional day of paid leave as a gesture of good will. This is the most common approach and of course the most desirable outcome for the employee.

• An employer could close but require employees to take the day off as part of their annual leave entitlement. If an employer chooses to do this, they must ensure that they give employees at least two days’ notice if they require them to take one day’s annual leave on a specific date.

• An employer could require employees to work as normal. An employee can still request annual leave on this date in the normal way. An employer is under no obligation to allow any particular request for holidays, but should only refuse any request on reasonable grounds.

If an employer chooses option three and, as a result, the employee refuses to attend work, the employer can treat this as a disciplinary issue.

Are employees entitled to extra pay when they work on a bank holiday?

There is no statutory right to extra pay when an employee works on a bank holiday, however this will be dependent on what is in the contract. If an employee has been paid an enhanced rate for working on public holidays for a long period of time during the course of their employment, care must be taken as the enhanced pay could have become an implied contractual term.

If a part-time employee or shift worker is not scheduled to work on a bank holiday, are they entitled to an additional day’s holiday?

Under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, it is unlawful to treat a part-time worker less favourably than the employer treats a comparable full-time worker.

So, for example, if an additional bank holiday falls on a Monday, and staff who normally work on Mondays are entitled to the day off, anyone who does not normally work on a Monday is losing out compared to full-time workers and is therefore being treated less favourably. As the majority of part-time workers are women, there is also a risk of an indirect discrimination claim.

The employer must ensure that part-time employees are treated fairly. The simplest and safest way to do this is to pro-rata a part-time worker’s bank holidays. The employer should look at how many bank holidays the part-time employee will benefit from in light of the days of the week they work. If this results in a shortfall – for example, their pro-rata entitlement is six but only two fall on their working days – the employer should allow them the additional four days’ holiday in lieu to be taken at another time.

If you require any further advice on bank holidays and an employer’s obligations, please contact a member of the employment team.