Additional Bank Holiday
The Queen’s Diamond Jubilee will see an extra bank holiday being added to the calendar for 2012 on Tuesday, 5th June. For many Employers, it will not be an issue and they will automatically give their employees the additional day off; but for some, particularly those whose businesses operate over 7 days per week, it may become more of an issue. So, is there a legal right to the additional bank holiday?
The starting point is always that the Working Time Regulations entitle full time employees to 28 days holiday each year. Although this is often seen as four weeks plus eight bank holidays, the Regulations do not give employees the statutory right to time off on bank holidays, but rather to time off as agreed with the employer. Whether employees are entitled to an additional bank holiday will depend on the wording of their employment contract and/or any subsequent agreement with the employee. Employees will not have an automatic right to paid time off on this additional bank holiday unless their contract covers the situation.
The contractual position can be summarised as follows: -
If the employee's contract states that they have a certain number of days annual leave entitlement ‘plus bank holidays’; then the employee will be entitled to an additional day's leave.
If the employee's contract states: -
that the employee has a certain number of days annual leave entitlement ‘plus eight bank holidays’ or
that the employee has a certain number of days annual leave entitlement, listing or naming the bank holidays included or
28 days annual leave either as a total or inclusive of bank holidays or
that the employee has a certain number of days and does not mention the issue of bank holidays;
then the Employee will not be entitled to an additional day’s leave.
An employer with such a contractual provision may theoretically decide to close down on 5 June 2012 and can require employees to take the day out of their annual holiday allowance although this may not be conducive to good employee relations.
Best practice points for employers
Regardless of the contractual entitlement to paid time off on the additional bank holiday, best practice employers should consider granting the holiday as a goodwill gesture. Some employees may react adversely if compelled to work. Alternatively employers may provide a day’s time off in lieu if employees are required to work on that day or could offer extra payment for the day. Some employers will have inconsistent contractual wording with the result that some employees are entitled to the extra day and some are not. Again the best approach may be to allow all employees the extra day.
If employees are asked to work on an extra bank holiday their right to extra pay again depends on the terms of the employee’s contract of employment and employers should already have addressed the rate of pay for working on a bank holiday. If nothing has been addressed in the original contract the employee’s entitlement will then depend either on what has been subsequently agreed or on what has been implied by custom and practice.
If employees have been paid a higher rate for working bank holidays in the past, it is likely that this will have become a contractual entitlement.
If the employee refuses to attend work on the extra bank holiday and there is a contractual obligation to work that day, the employer can follow its disciplinary policy and/or the ACAS code of practice on Disciplinary and Grievance procedures. Obviously if there is a right to time off on bank holidays this course of action cannot be followed.
Most employers will already have faced the above situation because of the additional bank holiday to celebrate the Royal wedding in 2011. There is no obligation on employers to grant a day off for the Diamond Jubilee just because they did so for the Royal wedding. Some employees may attempt to argue that a day off should be granted in 2012 based upon the previous custom and practice in 2011. However if an employer has granted an extra day off once previously, this one day will not give rise to a new custom and practice. Again, the position will depend on the wording of the employment contract and/or any subsequent agreement....back to top