To celebrate the 70th anniversary of Queen Elizabeth II’s accession to the throne on 6th February 1952, a one-off, extra bank holiday has been added on Friday 3rd June and the traditional May bank holiday moved to Thursday 2nd June to create a special four-day Jubilee weekend from 2nd to 5th June 2022.
So how will this work in practice?
The first point to note is that there is no statutory right to paid public holidays or time off in lieu of these – entitlement will depend on what is in the contract. Many employers grant public holidays as holiday in addition to the holiday entitlement stated in a worker’s contract, for example the contract might provide for “four weeks holiday plus bank holidays”. The precise wording of the contract is important so check this first. Employees may not be contractually entitled to the extra bank holiday if their contract states “four weeks holiday plus eight bank holidays” although in such circumstances their employer might consider granting a day’s paid leave on 3rd June 2022 given that this is a unique year.
Some sectors require their staff to work on public holidays, such as the retail sector and emergency services. If workers are entitled to the extra bank holiday but required to work on 3rd June 2022, they will be entitled to a day’s holiday in lieu. Where there is no express contractual provision for holidays but in practice staff are not required to work on public holidays, workers may have an implied right to the extra bank holiday on 3rd June 2022.
It used to be the case that employers would only grant the benefit of a bank holiday if the holiday fell on a day on which the worker in question would usually be at work. This practice meant that many part-time workers, particularly those who did not work on a Monday, would miss out on several bank holidays each year. It is now likely that employers who give part-time workers paid time off for bank holidays in such circumstances will be in breach of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. These regulations require that a part-time worker must not be treated less favourably than a comparable full-time worker as regards the terms of their contract (which include holiday entitlement) unless the treatment can be justified on objective grounds.
An argument that the less favourable treatment was due, not to the fact that the worker was part-time, but to the fact that the worker had agreed with the employer that they would not work on Mondays was successful in McMenemy v Capita Business Services [2007] IRLR 400, however, the reasoning in that case that part-time status must be the sole reason for the less favourable treatment for a claim under the Part-time Workers Regulations to succeed has since been doubted (in Sharma v Manchester CC [2008] IRLR 336).
A worker whose employer breaches the Part-time Workers Regulations can bring a complaint in the employment tribunal, which can award compensation on a just and equitable basis. In the context of time off for bank holidays, this is likely to be a sum to represent the loss of the benefit. The Equality Act 2010 could also come into play as the practice may be discriminatory if the part-time workforce is predominantly female or comprises another group protected under the Act.
Practically, employers should give all part-time workers a pro rata entitlement to bank holidays, regardless of whether they usually work on those days, to minimise the risk of less favourable treatment.
In many office-type environments which are open Monday to Friday, employers will want workers to take public holidays where they fall on a usual working day as the workplace is likely to be closed anyway.
Of course, employers should ensure that working arrangements are properly documented to avoid disputes and, where there are deficiencies, may need to amend the contracts of certain workers to reflect these requirements.
For more information about bank holidays, employment contracts or Employment Law and HR practice generally, please contact Amy Tunnicliffe, Trainee Solicitor on T: 01642 873766 or E: atunnicliffe@jacksons-law.com, or another member of the Employment Team at Jacksons Law Firm.
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