Bank Holidays – do and don’ts

How do you meet your legal obligations over Bank Holidays?

There is no statutory right to time off on a Bank Holiday.

The statutory obligations are to allow workers to take 5.6 weeks (pro-rated for part-time staff) holiday a year. When that is taken and what that includes is in the hands of the employer.

Most workers’ rights to holiday will be governed by their written contract/statement of terms,

Employers are legally obliged to provide a statement of terms and conditions including this information. The wording of this will determine the approach required for bank holidays. If the contract says “plus” bank holidays, then they are considered separately. If it says “inclusive” then they are simply part of the allocation. And if it says “inclusive of usual bank holidays, " this limits it to the usual 8 we have in the UK.

The simplest way to deal with them is to ensure your contracts state “5.6 weeks holiday INCLUSIVE of bank holidays”. This removes any ambiguity – bank holidays are simply part of the 5.6 weeks entitlement. Everyone gets 5.6 weeks.

It is up to you as the employer to decide what part of your workers’ holiday leave is prescribed – ie set by you – and what is free for them to choose, subject to your consent. There will be various possibilities here:

• All holiday is pre-set – where the business itself shuts down for either one long period or several shutdowns;
• Some holiday is pre-set – often these will be bank holidays, with sometimes an extended period over Christmas;
• No holiday is pre-set, with the business open at all times and bank holidays treated no differently than any other day.

Key pitfalls

Part-time staff or irregular hours

The main issues are perceived unfairness when staff either do or do not regularly work Mondays - the day on which most bank holidays tend to fall – and how to calculate holidays when the bank holiday element is calculated separately.

We do advise using “inclusive” in your contracts, as this makes the calculation of holidays simpler for everyone.

Where bank holidays are separated out, then you need to do 2 calculations. One of the % of the 20 days that your part-time staff are entitled to (someone working 3 days a week will be entitled to 0.7 of the 20 days, so 14 days) and then again for the bank holidays (using 0.7 this is 5.6 days).

If you are closed on bank holidays, then the calculation then needs to see how many bank holidays fall on the working days of that person. If that is less than the proportionate entitlement, then the extra is added to the 14 days and that is the holiday entitlement they can request themselves. Where this is a negative figure, then this needs subtracting from the 14 days.

Of course, if you are open as a business on bank holidays, then the two figures are simply added together.

Extra bank holidays

This year we have already had an extra bank holiday for the Jubliee and now have another announced for 19^th September for the Queen’s funeral. Whether you have to give it or not depends on your contractual terms.

• 20 days plus bank holidays = entitled to the additional platinum jubilee bank holiday.
• 28 days of annual leave inclusive of bank holidays = no contractual entitlement, up to the employer.
• 20 days’ holiday plus the usual bank holidays in England and Wales” = no contractual entitlement, up to the employer
• No contract? Arguably no automatic entitlement – the Working Time Regulations will apply

You will need to consider morale – how will workers react to being disallowed a national paid holiday? Previous conduct is relevant but not determinative – what did you do for the Jubilee? Given how recent this was, it will certainly raise expectations. Also, being a national day of mourning for the Sovereign there may be some people who will be genuinely upset and feel that it is disrespectful to work, so the emotions involved will be different to that of the celebratory Jubilee, and that is worth considering in your decision.

Time and a half

Some businesses are open on bank holidays and pay their staff extra if they are required to work them. Here you may find that staff are competing to work a bank holiday for the extra money, and you will need to have clear procedures in place for working these holidays, and ensure they are applied fairly.

Key takeaways on bank holidays

1. Make sure you have a clear contract in place – and consider amending it if it says “plus” bank holidays, making sure you take legal advice to avoid creating a breach of contract claims;
2. Remember no one has the “right” to any particular time off, you as the employer have the overall say;
3. Also, remember that fairness is an important right for employees, and make sure you are applying your rules fairly and in accordance with any discrimination laws;
4. Most important of all, make sure your staff understand how holidays work, and how they are allocated – most disputes arise out of a lack of understanding and clear information.