12.09.2022
Monday 19 September, the date of Her Majesty Queen Elizabeth II’s State Funeral, will be a national bank holiday (the “State Funeral Bank Holiday”). Below, we consider the implications of this additional bank holiday for employers.
Are employees entitled to the State Funeral Bank Holiday?
Entitlement to the State Funeral Bank Holiday is governed by each individual's contract and by the Working Time Regulations 1998 (‘WTR’). There is no overriding statutory obligation on an employer to allow their workforce time off following the Government’s announcement that there will be a national bank holiday to coincide with Her Majesty Queen Elizabeth II’s State Funeral. Accordingly, employees are not necessarily entitled to this additional bank holiday simply because the Government has announced it.
Terms of the contract
Whether or not an employee is entitled to the extra day will depend on the terms of their contract, whether expressly provided or established as a result of custom and practice.
Contracts often provide that employees are entitled to all statutory and public holidays. For example, the contract may entitle the employee to "25 days’ holiday per year plus public and bank holidays". If this is the case, then your employees will be contractually entitled to take the additional bank holiday on 19 September as an extra day of paid leave. Contracts which explicitly list the public holidays to which the employee is entitled are also not unusual. Given that the additional bank holiday on 19 September has only recently been announced, it will not be specifically mentioned in the list of public holidays in contracts drafted in this way and, as such, employees will not be contractually entitled to that day as paid holiday, unless you otherwise agree.
Similarly, if the contract states that the employee is entitled to “the eight recognised public holidays”, the implication is that the employee is not contractually entitled to what will be a tenth public holiday this year in England and Wales (taking into account the Platinum Jubilee bank holiday which took place in June).
You may, of course, choose either to give employees 19 September as an extra day of paid holiday, or as unpaid leave, or you could follow whatever stance you have taken in relation to previous ‘one off’ bank holidays such as the Platinum Jubilee bank holiday earlier this year.
Working Time Regulations
The WTR entitles workers (a broader group of individuals than employees) to a statutory minimum of 5.6 weeks' holiday each year. This is equivalent to 28 days for a full-time five-day a week worker and the entitlement is pro-rated for part-time workers.
The WTR do not confer a right to take specific public holidays as holiday and the amount of statutory leave is inclusive of all public holidays. Under the WTR, therefore, the additional bank holiday on 19 September could be treated as one of the 28 statutory days.
WTR leave is not additional to an employee's contractual entitlement and often contracts of employment or collective agreements contain more generous provisions for holiday entitlement than the WTR. Where a worker has a contractual right to annual leave and a corresponding right under the WTR, the worker may take advantage of whichever right is more favourable – usually the contractual entitlement.
Payment for working on the State Funeral Bank Holiday
Where you have a right to require a member of staff to work on the State Funeral Bank Holiday, payment will be at their normal rate unless the contract states otherwise (e.g. if it provides a premium rate for working on public holidays).
Part-time workers
The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the ‘PTWR’) will also be relevant to the way in which you deal with this additional bank holiday. The PTWR provide that it is unlawful to treat a part-time worker less favourably than a comparable full-time worker unless the treatment is objectively justified. Unfortunately, the PTWR do not expressly deal with the issue of bank or public holidays. Some employers grant part-timers a pro-rata entitlement to these holidays regardless of which days they are rostered to work. Others only allow part-timers paid time off if the holiday in question falls on a day on which the employee would otherwise normally be at work. This can result in unfairness to part-time workers who happen not to work on Mondays (when most bank holidays fall).
Although the position of part-time workers in relation to bank and public holidays has never been particularly clear, the courts have emphasised that to be unlawful the less favourable treatment must be solely on grounds of part-time worker status. This may suggest that a claim by a worker employed in a business where there is a policy of only paying for public holidays that are normal working days would fail. This is because the reason for the treatment is that the employee does not normally work on the day on which the public holiday falls, not their part-time status. That said, apportioning bank and public holidays for part-timers on a pro-rata basis is still the safest approach for employers to take.
Importance of advance planning
It might be operationally difficult for your business to accommodate the State Funeral Bank Holiday given its imminent date. As schools and colleges have been instructed to close, it is likely that many working parents may wish to take time off. Clear communication with your staff as to how you intend to deal with the additional bank holiday will no doubt be helpful.
How we can help
Make UK members can access guidance on employees’ holiday entitlements in the HR & Legal Resources section of our website and can speak to their usual adviser if they have any specific queries about the impact of this additional bank holiday, or any other holiday related issues.
We can also provide advice and assistance to non-members on a consultancy basis – if you would like further information on our services, please call us on 0808 168 5874, or email [email protected].