23rd May 2022

Bank holidays: some top tips for employers

Given the upcoming Platinum Jubilee celebrations, we were asked at a recent Ask The Expert webinar about bank holidays, and how these should be dealt with, particularly in relation to part-time workers.

Warning! Typical lawyer answer coming your way! It really depends on your contract and policy.

Generally speaking there is no requirement to offer bank/public holidays as additional holidays as employees will usually receive credit for bank/public holidays in their holiday entitlement. The latter 1.6 weeks of an employee’s entitlement to 5.6 weeks of annual leave is meant to reflect the number of bank/public holidays which fall in a typical year and so are arguably built in to yearly holiday entitlement.

Employers therefore usually deal with bank/public holidays in one of two ways: choosing to follow some or all of the bank/public holidays and closing their business on those days and deducting the relevant amount from the employee’s holiday entitlement (remember that employers can require employees to take holidays on specific days if the correct amount of notice is given); or deciding to trade and indicating that staff have an annual lave entitlement which they are free to take whenever they want, provided this is approved. Bank/public holidays are not a legal requirement meaning the discretion is with the employer.

Some employers also decide to go further than the statutory requirement and so if your policy indicates that you will give all the bank/public holidays in addition to the 5.6 weeks’ statutory holiday requirement then you have to do that as not to do so would be a breach of contract.

In relation to the Platinum Jubilee holiday, given this is a one-off event, most employers are likely to be giving this is an additional discretionary day (or days).

Part-time staff

The situation is slightly more complicated for part-time staff, particularly those who do not work on the days when bank/public holidays traditionally fall.

The issue will be whether you are giving this as a discretionary day (or days) to all staff or, as I have indicated, whether your contracts indicate that staff will receive all bank/public holidays as additional leave. You might therefore be asked by a part-time person whether they are also going to receive additional leave, if it is an additional day for all staff, regardless of whether it is their day to work.

For those who are part-time who do not work on that particular day, unless your contract or policy states otherwise, then this will likely be viewed as a discretionary day when the business will be closed (on a day when they do no work) and so they will not get additional leave.

There is however a potential argument that part-time workers are being treated less favourably by not receiving an equivalent amount of pro-rata holiday for the bank/public holiday where other staff are receiving this as a discretionary additional holiday. That is because there is legislation which prevents the less favourable treatment of part-time workers. The case law here is however rather mixed and a policy of saying that bank/public holidays are only given on days worked has not been conclusively found to be discriminatory to part-time workers. The part-time worker would likely require to show that the reason for the different treatment was solely because of their part-time status when in fact, in this case, the reason is a discretionary holiday on dates not decided by the employer which the employee would not receive as they do not work that day (not because they work part-time).

Nonetheless, if you are offering this as a discretionary additional day (or days) for all staff, the least risky option, would be to offer a pro-rata amount of time off for those who do not work on that particular day as a result of being part-time, if that is your preference. The key is that the part-time worker, on a pro-rata basis, does not receive less favourable treatment than a full-time worker.

If you have any questions about this or any other employment law issue, please contact the Blackadders Employment Law team. Or why not sign up for our next Ask the Expert webinar and ask your own burning question? Details here.

If you require advice on this or any other employment law topic, then please get in touch with the Blackadders Employment Team and please sign up for our next Ask The Expert webinar.

Blair Duncan, Solicitor
Employment
@EmpLawyerBlair

www.blackadders.co.uk

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