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Are employees automatically entitled to additional Bank Holidays?

Next month, we have an extra bank holiday to celebrate the Queen’s Platinum Jubilee, meaning there will be nine rather than eight bank holidays in 2022. This has raised the question of whether employees are automatically entitled to the additional time off.

Nicola Smyrl, partner in the Luton office of employment solicitors Taylor Walton, says: “There is no statutory right to additional bank holidays and the position will depend on the wording of the employee’s employment contract. Employers considering advising staff that they will not be entitled to the additional bank holiday, will need to check the wording of the contract carefully to ensure that you are acting in accordance with its terms.”

The contract may or may not specify that entitlement to bank holidays is limited to the eight usual bank holidays. For example, if the employment contract states that the employee is entitled to:

X days holiday plus bank holidays – means the employee will be entitled to the extra day of holiday. The contractual wording will include all bank holidays, not just the usual eight.

X days holiday plus the usual bank holidays – means the employee will not be automatically entitled to the extra day of holiday as the additional bank holiday for the Jubilee is unlikely to be regarded as a “usual” bank holiday.

X days holiday plus eight bank holidays – means the employee will not be entitled to the extra day of holiday.  The contract clearly states that the entitlement is limited to eight bank holidays.

X days holiday inclusive of bank holidays – this is unlikely to give rise to an automatic right to an extra day of holiday entitlement because the total number of days is clearly stated in the contract, inclusive of all bank holidays.

Where the employee is not automatically entitled to an additional bank holiday, employers can still exercise their discretion to award the additional day to employees. But Nicola warns there are other points to consider too:

Working on bank holidays – Even where an employee may be entitled to an additional bank holiday based on the wording of their contract, this does not necessarily mean that the employee is entitled to be off work on 2nd and 3rd June 2022.  For the fish and chip industry. bank holidays can be the busiest times and it is common for staff to work on bank holidays, which may require employers to allow staff to take a day off in lieu at another time.  Alternatively, as the additional bank holiday is in excess of statutory minimum holiday entitlement under the Working Time Regulations 1998 (WTR), consideration could be given to making a payment to staff in respect of the additional day.

Pay for working on bank holidays – If the employee is entitled to the extra bank holiday under their employment contract, it is likely that if they work on these days, any enhanced rate of pay for working on bank holidays would also apply.  If there is no automatic entitlement to the extra bank holiday, the employer may have discretion about whether enhanced rates for bank holiday working apply.  Careful consideration will need to be given to the relevant contractual provisions.

Part time employees – The position for part time employees is the same as for full time employees, save that any entitlement can usually be calculated on a pro rata basis. Employees who do not work on Fridays should not be deprived of the additional day just because of their normal pattern of work, as this may fall foul of legislation protecting part time employees.

What should employers do now? Nicola says for anyone intending to deny the additional bank holiday, consideration should be given to how this will affect staff morale, particularly at a time when many businesses are struggling to recruit and retain staff.

“For employers intending to let staff take the additional bank holiday, even though the employment contract does not provide for this, it would be a good opportunity to explain to staff that they have been given an additional benefit at the discretion of the employer,” she concludes.

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