The Bank Holiday Issue

The Bank Holiday Issue

 

Whenever a bank holiday, as Public holidays are termed, falls on a weekend, a “substitute” weekday becomes the bank holiday, normally the following Monday.

But as an employer, do you have to allow your staff these days off?

There is actually no statutory right for employees to take bank holidays off work. Any right to time off, payment for time off or extra pay for bank holidays worked depends on the employee’s contract of employment. Therefore, subject to the terms of the contract, employees can be required to work on Bank Holidays.

Under s.1 of the Employment Rights Act 1996, employers must give new employees a written statement of terms and conditions of employment

Under s.1(4)(d)(i) of the Act, the statement must contain terms relating to holiday entitlement, including bank holidays, and holiday pay. In the absence of a written statement, or written contract of employment, the rights relating to time off for bank holidays will depend either on what has been verbally agreed or on custom and practice. For example, if employees have been given paid time off for bank holidays in the past, it is likely that this will have become a contractual entitlement. Any unilateral changes could constitute a fundamental breach of contract, enabling the employees to resign and claim constructive unfair dismissal if they have been employed for at least two years. Any employees who do not meet the qualifying service requirement can claim breach of contract, as there is no service requirement for such a claim.

So how do you stand if an employee agrees to work over the bank holiday, but asks for extra pay for doing so?

There is no statutory right to extra pay, for example time and a half or double time, when an employee works on a bank holiday. Any right to extra pay depends on the terms of the employee’s contract of employment.

Again, we refer to s.1 of the Employment Rights Act 1996, employers must give new employees a written statement of terms and conditions of employment. Under s.1(4)(d)(i) of the Act, the statement must contain terms relating to holiday entitlement, including bank holidays, and holiday pay. Employers should stipulate the rate of pay for working on a bank holiday. There is no right for employees to be paid a higher rate than normal for working on a bank holiday, unless this is provided for in the contract.

In the absence of a written statement, or written contract of employment, an employee’s rights relating to bank holidays depend either on what has been verbally agreed or on custom and practice. For example, if employees have been paid an enhanced rate for working bank holidays in the past, it is likely that this will have become a contractual entitlement. Any unilateral changes could constitute a fundamental breach of contract, enabling the employees to resign and claim constructive unfair dismissal if they have been employed for at least two years. Any employees who do not meet the qualifying service requirement can claim breach of contract, as there is no service requirement for such a claim.

And for part-time employees? The following is a resume of the essence of the situation, but can be affected by other factors.

An employer’s obligation to part-time workers must be considered in line with the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551), under which part-time workers are entitled to the same terms as comparable full-time workers, but on a pro rata basis.

The employer must ensure that a part-time employee receives his or her pro rated entitlement if bank holidays are included in the employee’s statutory minimum holiday entitlement, or if the employer grants an entitlement that exceeds the statutory minimum to its full-time workers.

As always, we would stress this is a guide to the situation and should any conflict or confusion arise on these issues between yourself and staff, you should take appropriate professional advice before making any decisions.