Bank Holidays – employers do’s and don’ts

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

The minimum legal obligation is to permit, and encourage, workers to take 5.6 weeks (pro-rated for part-time staff) holiday a year - that’s 28 days per annum.

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 information on holidays.

• The wording of this will determine the approach required for bank holidays.
• If the contract says 20 days “plus” bank holidays, then they are considered separately.
• If it says “inclusive” of bank holidays, then they are simply part of the allocation.
• If it says “inclusive of usual bank holidays” then 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 the usual bank holidays”. This removes any ambiguity – bank holidays are simply part of the 5.6 weeks entitlement. Everyone gets 5.6 weeks.

What about notice and rights to take and refuse leave requested?

It is up to you as the employer to decide what part of your workers’ holiday leave is prescribed i.e. set by you – and what is free for them to choose, subject to correct notice being given and your consent being issued in return.

On that notice point, the Working Time Regulations prescribe:

• a minimum notice to be given to take leave; and
• a minimum notice for employers to refuse leave on reasonable grounds.

You can refuse requested leave as long as you give the correct counter-notice, or where the employee has failed to give the correct notice in the first instance.

You can also set your own requisite notice periods too.  

What about fixing periods where leave can and can’t be taken?

There will be various possibilities here and you can fix periods in which holiday can be taken, for example:

• 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 this 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 to any other day.

You can also, in most cases, fix busy periods where leave is restricted.

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 two 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 0.6 of the 20 days, so 12 days); and
• then again for the bank holidays (using 0.6 this is 4.8 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 an extra bank holiday for the Jubliee.

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.
• 28 days of annual leave inclusive of the usual bank holidays = entitled to the additional platinum jubilee bank holiday.
• No contract? Arguably no automatic entitlement – the Working Time Regulations will apply

You will need to consider morale too – how will workers react to being disallowed a national paid holiday?

Previous conduct is relevant but not determinative – what did you do in 2011 for the royal wedding?

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. You can fix periods of leave and you can set notice requirements;
4. Also remember to ensure you are applying your rules fairly and in accordance with any discrimination laws;
5. Leave is an important right. You must show you encourage employees to take it;
6. 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.