As you are probably aware, Monday 19th September 2022 has been announced as a national Bank Holiday by the Government.
Employers across the UK have raised a number of questions following this announcement, including:
- Whether this Bank Holiday has to be honoured.
- Whether it needs to be given as an additional day or whether it can be taken from current holiday entitlement.
- Whether it has to be paid.
- Whether employees can choose to take the day’s leave from existing holiday entitlement, even if the employer does not intend to honour the Bank Holiday.
There is no absolute legal right for employees to be granted a day off for the Bank Holiday. Whether an employee is granted such a holiday will come down to the agreement of the employer and the wording of the employee’s contractual holiday entitlement.
The Government has issued advice, which can be found here:
Before we consider the legal right of employees, a large consideration here will be that many employees will have the expectation of having the day off due to widespread media coverage of the Bank Holiday. Employees will also see many friends and relatives having the day off as a Bank Holiday and that itself may cause difficulty for employers who refuse to treat it in a similar fashion.
Regardless of contractual entitlement, employers are of course free to give the holiday to employees as an additional paid Bank Holiday. That said, inflation and the current cost of living crisis may mean that employers will be looking at ways to avoid an additional and unexpected cost burden.
Contract of Employment
Whether an employer needs to give the day as a paid Bank Holiday may depend on the written contract of employment.
For example, if the contract is stated as being 28 days inclusive of Bank Holidays, then there may be no requirement to give the additional Bank Holiday. If the contract states 20 days plus 8 Bank Holidays, then the employer could argue that the number of Bank Holidays are capped at 8. If the contract states 20 days, plus the ‘standard or usual’ Bank Holidays then it could be argued that this is not a standard or usual Bank Holiday. However, this is uncharted territory.
If the contract states that the employee is entitled to 20 days plus Bank and Public Holidays, then the employee will have a better argument to say that they are guaranteed this additional one day off on a paid basis.
The Government advice states:
Does this Bank Holiday mean individuals can have the day off work?
This is a matter for discussion between individuals and their employer. There is no statutory entitlement to time off for Bank Holidays, but employers may include Bank Holidays as part of a worker’s leave entitlement.
The government cannot interfere in existing contractual arrangements between employers and workers. However, we would expect that many workers will be able to take the day off on the Bank Holiday. We also expect employers to respond sensitively to requests from workers who wish to take the day of the funeral off work.
No right to a Bank Holiday, but the employer wishes the employee to take holiday from existing entitlement
Employers who are able to interpret the employment contract to say that they do not have to give the additional day’s paid holiday can still offer the holiday, but require it to be taken from the employee’s current holiday allocation. If the employer wishes to enforce a day off on the 19th by, for example, closing, then the employer would need to give at least two clear days’ notice in writing to the employee that they must take a day’s holiday next Monday from existing holiday allocation. Employers will not be able to do this where the employee has no holidays left to take.
Employee has a right to the paid Bank Holiday, but the employer wishes the employee to take the holiday on a different date
Where the employee has a contractual right to the additional paid day’s Bank Holiday, the employment contract or employee handbook might allow flexibility for the employer to require the employee to work the Bank Holiday and take that holiday at a different time later in the holiday year.
No legal right to a paid Bank Holiday, but employee wishes to take a holiday regardless
Where the employer is not providing the paid Bank Holiday, an employee can still apply for a holiday on this day by utilising their usual holiday allocation. Such a holiday application should be considered by the employer in the usual way. However, given that schools are due to close on the 19th, then those employees with child caring responsibilities will need any requests for time off to be considered sympathetically.
The closure of schools on the 19th, the expectation of employees and possible loss of goodwill from employees having to work on the Bank Holiday, particularly when they see family and friends taking the day off, may lead many employers to ignore the questions around contractual rights and instead take the pragmatic approach and allow a day’s paid leave.