As part of the celebration of the Queen's Platinum Jubilee, the late May bank holiday will be moved to Thursday 2 June 2022, with an additional one on Friday 3 June 2022. This change may have practical and contractual implications, and it is vital that employers are aware of the relevant regulations.
Notice and practicalities
Employers are likely to face an increased number of requests for holidays around this time with many workers wanting to take advantage of the four-day weekend. Employers should have a clear and consistent holiday request procedure and plan well in advance for potential staffing issues, taking into account where applicable the holiday notice provisions under the Working Time Regulations 1998 (WTR):
- Workers are required to give notice at least twice the length of the holiday they wish to take.
- An employer may refuse a holiday request by serving a counter-notice (notice period must be at least the number of days being refused).
- An employer may give notice ordering a worker to take statutory holiday on specified dates, and notice must be twice the length of the required holiday.
The WTR default notice provisions can be amended or disapplied by a relevant agreement (eg, a written contract, a collective agreement incorporated into the worker's contract, or a workforce agreement).
As well as an entitlement to four weeks' annual leave under the Working Time Directive (WTD), workers have a right to an additional 1.6 weeks' annual leave under the WTR (eight days for full-time workers) each year. This represents the number of public holidays in England and Wales, however unless contractually specified there is no obligation to use these days on public holidays. There is no statutory right to time off (paid or otherwise) on any public holiday. This is a matter for the contract or, in some cases, down to the employer's discretion. In many sectors, working on public holidays is a commercial or operational necessity.
Employers should consider their contracts of employment to determine how they approach the additional bank holiday of 3 June 2022. For example, the contract may state that an individual's annual leave entitlement includes ‘all bank and public holidays’ or it may specify ‘eight days of bank and public holidays’. If the latter, employers will then need to decide whether to give the additional bank holiday and prepare accordingly. Alternatively, the contract may specify that workers are entitled to days off in lieu due to having to work on public holidays. Where the contract is silent on the point, a court or employment tribunal may imply a contractual right to paid public holidays but only if there is an established custom and practice to that effect.
The position of part-time workers in relation to public holidays is not straightforward. There is no statutory right to paid public holidays but employers must ensure that part-time workers still receive 5.6 weeks' leave, pro-rated in accordance with the hours they work. Some employers only give this benefit on the public holiday if the holiday falls on a day the worker normally works. This can be unfair for those who don't work on Mondays (when most bank holidays fall).
The question whether an employer should give time off in lieu for missed bank holidays is not addressed in the WTR. Employers who only give part-time workers paid time off for public and bank holidays that fall on days on which they normally work may breach the Part Time Worker Regulations 2000 and leave entitlements under the WTR, because those part-time workers who do not normally work on Mondays, or whose working days are variable, will be treated less favourably than comparable full-time workers and/or may not receive their full statutory entitlement. The same considerations apply to contractual holiday rights above 5.6 weeks.
The simplest way to achieve equality in such cases is to give part-time workers a pro-rata entitlement to public holidays, regardless of whether they normally work on days on which those holidays fall, and to monitor the days on which they work.
Menna Chmielewski is a solicitor in the employment law team at Blake Morgan