Time and time again, bank holidays are a source of confusion for employers and their staff and if this is not resolved it can lead to upset and complaints. So, what do you need to know?
1. There is no right to automatic time off
There is no statutory right to time off on a bank holiday. All workers must receive at least 5.6 weeks’ paid annual leave each year, but it is up to an employer as to when they are allowed to take those days off.
Many businesses will close on bank holidays and, where that’s the case, it is relatively easy to deal with; it can be specified in the employment contract which bank holidays must be taken as annual leave. There are various ways to do this, such as specifying the days (ie Good Friday, early May bank holiday, etc) to be taken as bank holidays or saying that the bank holidays are part of the employee’s overall holiday entitlement, amongst others.
Where the business is not closed, then it may be that only some of the staff have to work. Setting out a rota early, naming those who are expected to work, or asking employees to volunteer to work on bank holidays, perhaps by requiring them to do a minimum of two a year, are good ways to manage this issue to avoid any confusion. Where bank holidays form part of an employee’s holiday entitlement and they do work, they should be allowed to take the leave at another time, or their annual leave will be short for the year. Employers should also be aware that as the date of Easter varies every year, they should regularly check that workers are getting their full holiday entitlement.
2. Employers can set their own rules on pay for bank holiday working
Employers may reward staff for working on bank holidays by paying them extra, but there is no rule that this must happen; it will depend on the employment contract. Many businesses offer extra pay for bank holidays as an incentive to encourage staff to work those days.
Any bonuses, including extra pay for bank holidays, should be stated in staff contracts. Where extra pay has been paid in the past, but it is not set out in the contract, it may be that an implied term has developed that it will be given. Withdrawing additional pay on bank holidays in these circumstances may therefore be a breach of contract and result in an employment tribunal claim. It is important to be consistent in applying these rules and the best way to ensure this is to put it in writing in the employment contract.
3. Employees can be forced to take annual leave over bank holidays
If an organisation closes over bank holidays, such as on Christmas Day, employees can be required to use annual leave while the organisation is shut. Where there are plans to do this, as much notice as possible should be given, usually at the beginning of the annual leave year. The minimum notice that must be given is twice as much notice as the period that the employee is required to be off work. For example, to require employees to take one week off, they would need to be given two weeks’ notice.
One of the most straightforward ways to do this is to include it in the employment contract and/or holiday policy.
It should be noted that a bank holiday might be on a day a worker does not usually work, eg if someone works part time and does not work on Mondays. In this situation, the employer cannot make them use that day as part of their holiday entitlement.
4. Holiday requests from particular groups of employees should not be prioritised
Questions often arise as to whether annual leave requests from staff with religious beliefs or those who have school-age children should be prioritised where they coincide with school holidays or special religious occasions, but this could result in issues with childless or non-religious workers. Instead, it is advisable to adopt a first-come, first-served approach. Some organisations will set rules around when leave for certain times of the year will be accepted, so everyone has a fair chance to submit their request.
Where individual teams have minimum staffing requirements over bank holidays, or at any time in the year, it is strongly recommended to highlight these to staff and to let them know how many people are already booked off so they can make their plans accordingly. This could be via a shared holiday calendar, or an anonymised calendar marked with how many people are off on individual days.
5. Annual leave policies and employment contracts
Under the Employment Rights Act 1996, employee entitlement to holidays, including public holidays and holiday pay, must be set out in the employment contract. Beyond this legal minimum, in order to communicate clearly to staff what the rules are on holidays, contracts and policies, the following should be covered:
- extra pay for working certain days
- annual leave requests and notice requirements for such requests
- the days for which staff need to reserve holiday (such as bank holidays or annual shutdown, if applicable)
- restrictions on annual leave and policies on carrying over leave.
Takeaway
With eight bank holidays in England, nine in Scotland and ten in Northern Ireland in a standard year, it is a good idea to set down rules on bank holiday working so that a consistent approach can be taken on each occasion. Failing to do this can cause confusion and lead to the same questions being repeatedly asked and answered.
