On the auspicious occasion of the arrival of Prince Harry and Meghan’s baby, Archie Harrison Mountbatten-Windsor, it did leave a few of us in the hope of being granted an additional bank holiday, as we were for the Royal Wedding of Prince William and Kate Middleton. But alas, no – even his timely arrival on an existing bank holiday didn’t secure us an additional holiday; but we won’t hold that against him! After all, we didn’t get an additional holiday when William and Kate had their first child, so we guess that’s fair!
It did however raise the discussion of bank holidays in general. As enjoyable as they may be for some employees, they can prove a headache for Employers, particularly those who need their employees to work on bank holidays, or those who have part-time employees.
Therefore, this month’s blog focuses on answering some of Employers’ commonly asked questions when it comes to the tricky subject of bank holidays.
Are employees entitled to take bank holidays off?
No, there is no statutory right for employees to be given or take time off for bank holidays. The full statutory holiday entitlement is 28 days and bank holidays are usually off-set against this, as part of annual leave entitlement (pro-rata for part-time employees). Any specific right to take time off for bank holidays is subject to the terms of their Contract of Employment (which should include a written statement on full holiday entitlement and holiday pay). In the absence of written confirmation on this, rights for time off for bank holidays will fall to ‘custom and practice’ – whatever arrangements you have made for your employees in the past.
I need my employees to work on bank holidays. Are they entitled to pay in lieu, or additional holidays?
This would depend on the employee’s holiday entitlement and the terms of their Contract of Employment.
If their holiday entitlement is the statutory minimum annual leave of 28 days (if they work a five-day week or more), and they are required to work a bank holiday, then they must be granted a day off in lieu to bring the total back up to the statutory minimum. Employees cannot be paid in lieu of statutory minimum annual leave (except on termination of employment).
However, if the employee’s contractual holiday entitlement is more than the statutory minimum of 28 days, the right to a day off in lieu will be subject to the terms of their Contract (or ‘custom and practice’ in the absence of a Contract).
I have some part-time employees. Are they entitled to an additional holiday if they are not scheduled to work on a bank holiday?
By law, part-time employees are entitled to the same terms as equivalent full-time employees, but on a pro rata basis. Part-time employees who do not work on Mondays (when most bank holidays occur) would not benefit from as many bank holidays as full-time employees. Therefore, an Employer should calculate how many bank holidays a part-time employee would benefit from, based on the days they do work. If there is a shortfall, compared to the number enjoyed by a full-time employee, the Employer should allow the employee additional holiday. The Government provides a useful ‘holiday entitlement calculator’ that can assist both employers and employees with checking their statutory rights based their own individual working patterns.
When it comes to religious bank holidays (i.e: Easter), should I grant additional time off in lieu for employees who practice religions other than Christianity?
There is no legal requirement for Employers to grant additional time off in lieu for employees who practice religions other than Christianity, as that would amount to unlawful direct discrimination against Christians (under the Equality Act 2010, workers are protected against direct and indirect discrimination because of any religion, religious or philosophical belief, or lack of religion or belief). All employees have the right to use their holiday entitlement for time off for religious purposes.
However, and here is where it gets tricky, it can be argued that being required to take time off due to the closure of a workplace for a Christian religious event such as Easter, for example, can amount to indirect discrimination against employees who practice religions other than Christianity and therefore do not benefit from bank holidays for their religious celebrations.
There are viable options for justifying this requirement (i.e: it may not be feasible for a workplace to open when suppliers are closed, and custom is low), but treading carefully is essential. Please contact us if you require advice on this.
What if we are granted an additional bank holiday, for example, for a Royal event?
This did happen in 2011, when we were granted an additional bank holiday for the Royal Wedding of Prince William to Kate Middleton.
In such cases, it is important that your Contracts of Employment are specific about entitlement for bank holidays. If you have only stated that your employees are entitled to the ‘statutory minimum annual leave, plus bank holidays’, then it would be expected that an additional bank holiday granted by the Government would be encompassed in this. However, if you have stated ‘the eight bank holidays for England’, for example, then this would not cover any additional bank holidays granted. If you have made no mention of bank holidays in your Contracts at all, or there are no Contracts in place, then once again it falls to custom and practice. Where there is no custom and practice within a business, an argument often ensues!
Bank holidays can prove to be a tricky subject for Employers, and resulting questions span further than the brief overview we have provided here (i.e: what to do if an employee refuses to work on a bank holiday; what if employees demand extra pay for working bank holidays, etc.), but we hope these answers will provide a great starting point. Should you need further support or guidance on this topic, please contact us.