This article was co-authored by Ellen Hambly and Lucy Atkinson.
Following the loss of Her Majesty Queen Elizabeth II, employers will need to navigate the implications of the additional national bank holiday, which is due to take place on Monday 19 September 2022.
Under The Working Time Regulations 1998, most workers (including employees) are entitled to a minimum of 5.6 weeks’ paid holiday a year.
However, despite the above, there is no set statutory right to time off work, whether paid or unpaid, on a public bank holiday. This principle is also echoed in the recently published government guidance document published on 10 September 2022, regarding the upcoming additional bank holiday, which confirms that
“this bank holiday will operate in the same way as other bank holidays, and there is no statutory entitlement to time off. Employers may include bank holidays as part of a worker’s leave entitlement”.
Accordingly, the decision as to whether a worker will be required to work during a public bank holiday or whether they will be permitted to take time off is typically a matter of contract, or at the discretion of the employer.
Often, contracts of employment include wording which confirms that an employee shall be entitled to a certain number of days’ annual leave plus public holidays. In this situation, the employer will be obliged to allow the employee paid time off on the additional national bank holiday.
If, however, an employee’s contract of employment specifies that they shall be entitled to their annual leave plus ‘the eight usual public bank holidays in England and Wales’ then the employee will not have an automatic entitlement to the additional bank holiday. The employer in this instance has two options:
Finally, if an employee’s contract states that their annual holiday entitlement shall be ‘inclusive of all bank holidays’, they would be allowed to take the additional bank holiday as leave but, once again, it would come out of their overall annual leave quota.
If an employer is closing its premises for the bank holiday, but employees are required to use a day of their existing holiday entitlement, then the employer would need to issue a notice to employees requiring them to take statutory holiday on the additional national bank holiday.
This notice must be at least twice the length of the period which the employee is being required to take, therefore, two days’ notice would be required.
There are no specific requirements as to the exact format of the notice, therefore notice may be given verbally or more practically, in writing.
In some industries or occupations, commercial and operational considerations may determine whether employees will be required to work on public holidays.
Employers should also give consideration to how they treated previous additional national bank holidays, such as the Queen’s Jubilee and previous royal weddings. Some staff may expect the day off if they have been given this previously.
It will also be worth considering whether decisions made about office/premises closures and staff time off will impact on the company’s reputation and employee engagement. This is particularly relevant at a time when the job market is thriving, and valuable employees have plenty of options.
Another consideration for both employers and employees is that schools will be closed on the additional national bank holiday. This means that some staff with children may struggle with childcare arrangements if they are required to work.
Whatever approach is ultimately taken by employers, transparency and communication are encouraged, so that employees are readily aware of the rationale for any decisions taken.
For more information on the additional national bank holiday or any other discrete employment queries, please click here.