Dealing with bank holidays, including over the Christmas holidays, can cause headaches for employers. To add to the complications, this year the Government decided to change the 2020 May Bank Holiday. We unpick some of these issues below.
Employers may receive requests from employees who either want to work the bank holidays over Christmas, or who do not want to work it even where the employer remains open.
To avoid any debate over whether an employee can work on bank holidays, we recommend having it set out clearly in a staff handbook or policy and employment contract that the employer will close on certain public holidays.
Christmas Day is a public holiday in the UK and it is accepted that it is lawful to designate certain days where the workplace is closed, provided the employees are properly notified in advance. Under the working time laws in the UK (which govern holidays) an employer can give an employee notice requiring them to take certain days as leave, provided they comply with certain requirements, and therefore employers can insist that employees take certain days off as paid holiday.
Where an employer has to require employees to work on Christmas Day, e.g. pubs, hotels, restaurants, transport, public services, there may be resistance from some employees to this. Again, we recommend having it set out clearly in a staff handbook or policy and employment contract that the employer will expect shifts to be covered on bank holidays.
Even so, employers should carefully consider requests from Christian employees not to work on the grounds that it is a religious holiday for them. Any refusal of a holiday request may amount to indirect discrimination unless justified, similar to any refusal to allow an employee of another religion a day off for their religious festival.
Only in 2020, the 75th anniversary of VE Day (Victory in Europe Day), Friday 8 May, will become a bank holiday instead of the usual early May bank holiday. This is to enable people to celebrate the end of World War Two.
The change to May Day 2020 may have implications for your business depending on whether you employ part-time staff and/or open on a Bank Holiday. You may also have employees who have already made plans without realising the change to the Bank Holiday date. To try to avoid last minute panics, ensure staff are aware of the change early so that potential problems can be avoided.
The safest way to deal with part-time employee’s holiday allowance is to give all part-timers a pro-rated allowance for paid bank holidays, irrespective of whether or not they normally work on the days on which bank holidays fall. This means that to ensure that those employees who do not work on a bank holiday do not lose out, they are entitled to take holiday at another time on a day when they do work. Therefore, part-time employees who do not normally work on Friday 8 May, will be able to take time off work at another time.
Employees who do work on a bank holiday can be required to take their holiday on that date, as long as employees have been properly notified in advance (e.g. set out in holiday policy, contracts and handbooks). Therefore those part-time employees who normally work on Fridays, can be required to take off Friday 8 May as part of their holiday entitlement.
There is no right under any legislation for employees to take off bank holidays. Any such right depends on the terms of the employee’s contract of employment. Employers would need to check whether they, like many others, provide paid holiday on bank holidays in addition to the stated number of days’ holiday. If so, an employee would be entitled to the day off.
In the absence of anything in writing, the employee’s 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.
In any case, where the employee has a right to time off, then requiring that employee to work could lead to that employee bringing a claim for breach of contract (where the award could be pay in lieu for a day’s holiday). Or, if the employee has over two year’s service, they may also claim that the requirement to work amounts to a fundamental breach of contract, enabling them to resign and claim constructive unfair dismissal.
The law requires that full-time employees have a minimum of 28 days per year as paid leave (which can include bank holidays). If the employee is not given any additional holiday entitlement (under their contract of employment or otherwise) then they must have a day off in lieu of the bank holiday in order to ensure the minimum is met. That employee could not instead be paid in lieu of the bank holiday.
On the other hand, if an employee is given more than the statutory minimum then whether or not they are entitled to time off in lieu depends on the terms of their employment contract, verbal agreement, or any custom and practice in the business.
There is no right under any legislation to extra pay (for example time and a half or double time) when an employee works on a bank holiday. Any such right depends on the terms of the employee’s contract of employment (or on what has been verbally agreed or on custom and practice).
If the employee is not entitled to time off on the bank holiday then this can be dealt with under the disciplinary procedure. If the employee’s contract (or a verbal agreement or custom and practice) means that the employee is so entitled, then the employer could seek the employee’s written agreement to work on the bank holiday (perhaps in return for a day in lieu or increased payment).