Many businesses now operate 24/7 and over a quarter of all employment is undertaken on a part time basis. As a result questions have naturally arisen on what an employee is entitled to when it comes to public/bank holidays.
Is an employee entitled to a day off on a public/bank holiday?
The law does not specifically state that an employee is entitled to time off. However, as these days are generally observed by employers, provision is normally made for them in the terms of the employment, either expressly or through custom and practice. Depending on the employment contract, the employee may be given the time off or expected to work, when in some cases a day in lieu may be given.
Does an employee have a right to be paid for public/bank holidays whether they work them or not?
With the exception of when the public/bank holiday counts towards the employee’s statutory minimum holiday entitlement (see below) there is no automatic right to be paid for public/bank holidays.
Payment for time off over and above the statutory holiday entitlement is determined by the terms of employment. However, it is common practice amongst employers to pay employees their normal salary even though they are not required to work.
Similarly, there is no statutory right to an enhanced payment for working on a public/bank holiday although employees may have a contractual right to extra pay. Some employers’ practices include paying double time and, in very generous cases, a day in lieu is also given.
Do public/bank holidays count towards an employees annual leave entitlement?
Under the Working Time Regulations 1998 employees are entitled to a minimum of 4 weeks paid holiday a year (pro-rated for part timers). Currently this can include any public/bank holidays for which the employee is given paid time off.
However, the Government is proposing to make paid time off for bank holidays additional to the current 4 week holiday entitlement. A consultation process commenced on 13 June 2006 to increase the statutory minimum holiday entitlement from 4 weeks to 5.6 weeks, subject to a statutory maximum of 28 days.
The consultation closes on the 22 September 2006 and it is then intended that the additional leave will be phased in with the first increase to 4.8 weeks taking effect on 1 October 2007.
How should part time staff be treated when it comes to awarding time off for public/bank holidays?
The practice for part time staff varies amongst employers. Some only allow the employee paid time off when the public/bank holiday falls on a day when the employee would normally be working. Out of the customary 8 public and bank holidays in the UK each year at least 4 fall on a Monday. Employees who normally work on a Monday therefore have an advantage over those who do not.
The fairer approach, and one that is favoured by HR professionals as best practice, is to pro rata the entitlement. For example, a part time employee working 2½ days a week, regardless of when these are worked, would be entitled to be paid for 4 public/bank holidays compared to a full time employee working 5 days week who is entitled to 8 days.
The pro rata principle for part time staff is embodied in the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 but its provisions do not specifically address the entitlement to public/bank holidays. Clarification has therefore been left for the tribunals to decide.
The recent EAT case of McMenemy v Capita Business Services Ltd considered the policy of allowing only those working on the day on which the bank holiday fell to benefit and whether this constituted a detriment contrary to the Regulations. The EAT concluded that, whilst McMenemy had suffered a detriment, this was not as a result of his part time status but because he didn’t work on Mondays. Importantly, in this case the employer operated 7 days a week and so they also had full time employees who didn’t work on a Monday and were able to demonstrate that both full and part time staff were treated equally under their policy.
Either approach is therefore still legally acceptable but employers operating traditional hours may prefer the pro rata principle as the less risky approach, as surely it’s only a matter of time.