The majority of employees in England and Wales will be looking forward to the additional day’s holiday this year to celebrate 60 years of the Queen’s reign. However, for some employers the additional holiday will bring a contractual headache.
The Diamond Jubilee celebrations are scheduled to span between 2nd and 5th June, 2012. The late May bank holiday has been moved to Monday 4th June 2012 and an additional Jubilee bank holiday will take place the next day on Tuesday 5th June 2012.
Employers are likely to be asked by their staff whether they will have to work on this extra bank holiday and if not, whether they will be paid. So what’s the answer? Unfortunately it’s not as straightforward as it may seem!
Do I have to let my employees to have the day off?
The Working Time Regulations 1998 state that all workers have the right to at least 5.6 weeks’ paid annual leave per year, subject to a maximum of 28 days. You may have offered your employees a more generous holiday entitlement under the terms of their contract of employment.
There is no specific statutory right for an employee to have the day off (paid or otherwise) on a bank or public holiday and therefore, whether or not the employee is entitled to an extra day’s leave largely depends on what it says in their contract of employment.
As an example, a contract may provide that an employee is entitled to 20 days’ paid leave plus all public and bank holidays in England and Wales. If this is the case, then it is very likely that the employee will be entitled to paid leave for this extra bank holiday.
On the other hand, a contract which provides that an employee is entitled to 20 days’ paid leave plus the usual public and bank holidays may not be entitled to this extra day. Similarly, if the holiday entitlement stipulates 28 days’ paid leave including bank and public holidays, then the employee would not automatically have this as an extra day's leave. In those situations, the employee would need to book and take this day as part of their holiday entitlement should they wish to have the day off.
As an employer you do also have some discretion. Even if your employees’ contracts do not provide for this additional day off, you may decide to grant this as an additional day's leave to all staff. The positive morale amongst staff which is created by this additional benefit may justify the inevitable cost. Employers should also think back to how they dealt with the additional day's leave in 2011 for the Royal Wedding – there is argument that you should be consistent in your approach.
What about enhanced pay?
It is not unusual to see a contract which provides for double, or even triple, pay for employees working on bank or public holidays. This can often act as a great incentive for employees to work. However, there is no statutory entitlement to enhanced pay, so this is also down to the wording of the contract and any ‘custom and practice’ which has developed.
I’ve been inundated with requests to take the rest of the week off – can I refuse?
Employers may find that several employees all request the same days off. Although you are able to decide when your employees may take their annual leave and control how many people can be off at the same time, employers need to make decisions about multiple requests for leave on the same day with caution. Employees can become very disaffected if they believe they have not been treated fairly and consistently if their request for leave is refused when another colleague’s similar request may be granted. You will need to consider the needs of the organisation and be mindful that you must have sufficient cover during this period – you may decide it is best to allocate holiday on a ‘first come first serve’ basis to avoid disputes.
Will part-time workers be entitled to an extra day?
This is a confusing area and can often cause issues. Your part-time workers are entitled to the same holidays as your full-time workers, on a pro-rata basis. If you did not allow this you would be discriminating against them as part-time workers. Your approach should be consistent for all employees and the additional day should therefore be taken into account when considering their holiday entitlement, even if the bank or public holiday does not fall on the employee’s usual work day.
What should I do now?
Be prepared - check the wording of the holiday entitlement provisions in your employees’ contracts.
Provide information to all staff – Will they be given an additional day's leave? Will they be paid?
Make sure staff are aware of how holiday requests will be dealt with.
Seek legal advice if you are unsure about what your intended position should be in relation to holiday entitlement and holiday requests.
source Susan Evans, Lester Aldridge LLP