01 May 2012 #Employment
It’s been well publicised that the Late May bank holiday has been moved to the 4th June and that the 5th June has been declared an extra bank holiday to create a 4 day weekend commemorating the Queen’s Diamond Jubilee.
On face value, this appears to be good news for employees and bad for business. However, an individual’s entitlement to take the additional day off is not quite as obvious and, to establish this, it is necessary to read the small print in the contract of employment.
Employers ought to be well aware by now that employees do not have a statutory right to take time off on bank holidays. What they do have is a statutory right under the Working Time Regulations (WTR) to up to 28 days paid holiday a year, which may or may not include time off on bank holidays depending on the terms of the employment contract. The fact that an extra bank holiday has been called does not increase the entitlement to holiday under the WTR to 29 days. Whether or not an employee is entitled to the extra bank holiday in addition to any time off on the normal bank holiday will depend precisely on how the terms are written.
An employee will have a contractual right to take paid time off on the long Jubilee weekend if the contract states that the entitlement to holiday is in addition to, bank holidays. The question then is, does this provision entitle the employee to just the Monday or both the Monday and Tuesday? The answer is that; unless the wording of the clause limits this entitlement to the normal eight bank holidays per year (nine in Scotland) the employee will be entitled to paid time off on the extra bank holiday too. In practical terms, this will result in an extra day’s holiday for the employee, at a cost to the employer, where the contract states that the bank holidays are in addition to the normal holiday entitlement. However, where the bank holidays are expressed as being included in the overall holiday entitlement, the extra day may arguably be deducted from the employee’s remaining holiday entitlement, at no extra cost to the employer. Essentially, in this scenario, the employee can be required to forfeit one of their discretionary leave days in favour of the extra public holiday.
Possibly, where employees do have a contractual right to time off on bank holidays, it will be limited to the 8 normal bank holidays a year. The Late May bank holiday will be covered by this provision despite the fact that the date has been moved this year. As the contractual provision excludes the extra bank holiday, employers can treat the Tuesday as a normal working day if they wish and require employees who want to take this day off to book holiday in the usual way. Holiday rules generally stipulate that holiday requests must be approved in advance and can only be taken at times convenient to the company. Assuming that this is the case, it will be open to the employer to refuse a request for time off on the extra bank holiday if for operational reasons the employee is required to be at work. Employers are advised to reinforce their absence policy prior to 5th June if this is to be treated as a normal working day to dissuade employees tempted to "pull a sickie".
Where bank holidays are being observed, the needs of the business may still dictate that a skeleton staff or certain key personnel be required to work. Employers who may require an employee to work on the Monday, (and/or on the Tuesday where this is deemed to be a non-working day) should ensure that they have reserved the contractual right to require the employee to work on a public holiday and to take time off in lieu on another day. If not, the employer will need to obtain the employee’s agreement to come into work. There is no statutory right to extra pay, for example, time and a half or double time, for an employee who works on public holiday. Again, any right the employee has to enhanced pay will depend on the terms of their contract of employment.
Despite the inevitable cost involved, employers should consider honouring the Government’s intention by allowing employees the time off and granting the extra day’s pay, even though employees may not be entitled to it. When weighing up the cost, employers should not under estimate the value that such a gesture will have in terms of morale and employee relations or the psychological benefits of a 4 day weekend.
Employers will need to bear in mind that if they do decide to give staff paid leave on the 5th June, to avoid any less favourable treatment. Part timers who would not normally be working on that day should receive a pro-rata entitlement to take at a later date. Similarly, employees on maternity or other type of family leave and those who are absent on sick leave ought to be given the benefit of the increase and allowed a day a lieu. A decision to award extra paid time off only to those who would actually be at work on that day, whilst not automatically unlawful, is likely to amount to indirect discrimination, which, in the event of a claim, will need to be objectively justified.