Can employees be required to work on bank holidays?
There is no statutory right for employees to take bank holidays off work. Any right to time off depends on the terms of 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. This 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 time off for bank holidays in the past, it is likely that this will have become a contractual entitlement.
Is an employee who is required to work on bank holidays entitled to extra pay?
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.
Can bank holidays be included in an employee’s statutory leave entitlement?
The minimum statutory paid annual leave entitlement used to be four weeks, which could include bank and public holidays in the absence of any express or implied contractual terms to the contrary. Where an employer followed this practice, after eight public holidays had been accounted for, an employee on a typical five-day week was left with only 12 further days of annual leave.
In 2007, an additional 1.6 weeks’ statutory annual leave entitlement was granted, extending the right to minimum paid annual leave to four weeks plus the equivalent of the eight bank and public holidays in England and Wales. Employees are therefore now entitled to 5.6 weeks’ annual leave, which may include bank and public holidays, depending on the terms of the contract. There is no statutory right for any of the 5.6 weeks’ leave to be taken on bank holidays themselves.
Are part-time workers entitled to bank holidays?
Under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, a part-time worker has the right not to be treated less favourably than a comparable full-time worker on the grounds that they are a part-timer. This includes entitlement to bank holidays.
Where an employer includes bank holidays in the statutory minimum entitlement to paid holiday under the Working Time Regulations 1998 this is unlikely to cause problems. However, where full-time workers are entitled to bank holidays in addition to their statutory entitlement to holiday, difficulties may arise.
It may be fair to allow part-time workers to take a bank holiday where their day of work coincides with a bank holiday, particularly if a shift system means that both full-timers and part-timers are equally likely to be rostered to work on a bank holiday. However, where workers work fixed days each week, part-timers could be disadvantaged by such a practice. As most bank holidays fall on a Monday or a Friday, those part-timers who never work on these days will be entitled to proportionately fewer days off than full-timers who regularly work on these days. In these circumstances the disadvantage could be removed by giving all part-timers pro rata entitlement to time off in lieu of bank holidays according to the number of hours they work.
If an employer provides for pro rata bank holiday entitlement for part-time employees, how should it calculate this?
While there may be no arrangement that will have entirely fair results for all employees whatever their working pattern, one option is to calculate pro rata bank holiday entitlement according to the number of hours that the part-time employee works, irrespective of whether or not they work on the days on which bank holidays fall.
For example, if full-time employees are entitled to eight bank holidays a year, in addition to their normal annual leave entitlement, a full-time employee working a five-day week of 37.5 hours would be entitled to 60 hours of leave on bank holidays (ie eight days of seven and a half hours). A part-time employee working a three-day week of 22.5 hours would be entitled to a pro rata bank holiday allowance of 36 hours (22.5 ÷ 37.5 x 60).
The employer should allow the part-time employee to book the 36 hours’ pro rata bank holiday entitlement as annual leave under the organisation’s normal procedure. If the employee is scheduled to work on any bank holiday, they would have to book this as annual leave to take the day off. If the business is closed on bank holidays, the employer could require the employee to take annual leave if they are scheduled to work on these days, by including this in the employee’s contract or giving the appropriate notice.