How should employers manage the extra public holiday?

Following the announcement of a bank holiday to mark the funeral of Queen Elizabeth II, Brigitte Weaver and Ciara McBrien explain what issues this might create for businesses, and how they should tackle them

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Following the announcement of a UK bank holiday for Queen Elizabeth II’s state funeral on Monday 19 September, employers may need to address certain issues arising during the period of mourning. The government has issued guidance on the topic.

No statutory entitlement to time off

This bank holiday will operate in the same way as other bank holidays. There is no statutory entitlement to have specific bank holidays off so the position will be dictated by the employment contract and based on individuals’ discussions with employees. If the contract says employees are entitled to ‘all bank and public holidays’, employers will be required to grant the extra day as additional leave. 

Managing those who are not entitled to the holiday

Many contracts will provide for a specified number of public holidays in addition to a specified annual leave entitlement or, alternatively, public holidays will be specified as being included within the total annual leave entitlement. 

If employees are not entitled to the additional bank holiday, employers have three options:

  1. require employees to work as normal; although employees will be able to request annual leave on this date in the normal way using their annual leave entitlement. The employer is under no obligation to allow any particular request for holidays, but should only refuse any request on reasonable grounds. The government has advised that this is a matter for discussion between the individual and their employee;

  • close, but require employees to take the day off as part of their annual leave entitlement. Employers must generally ensure that they give employees at least two days’ notice if they are requiring them to take one day’s annual leave on a specific date, but more notice is advisable; or

  • close, and grant employees an additional day of paid leave as a gesture of goodwill on a one-off discretionary basis. 

  • In accordance with government guidance, most issues that arise will likely be a matter for discussion between individuals and their employer. Although the first step is for employers to review the employment contract, employees should ensure that they are open to having conversations with their employees to discuss leave around the bank holiday and potentially flexibility around working hours if individuals wish to pay their respects. Where an employee is not entitled to the day off and refuses to come into work, disciplinary action may be taken subject to the proper procedures. 

    That being said, we encourage businesses to be sensitive to requests from workers who wish to take the day of the funeral off or other short-notice time off to pay their respects. We expect many workers will be able to take the day off on the bank holiday; however, each employer should make their own decision on whether or not staff are given the day off.

    Potential claims

    Organistions should ensure that part-time employees are not treated less favourably than full-time employees when it comes to annual leave entitlement. Therefore, if the extra day off is being given then part-timers should receive, at least, the appropriately pro-rated amount of leave. In terms of potential discrimination claims, being a royalist or monarchist may come within the scope of ‘philosophical belief’ under the Equality Act. If this is a genuinely held belief then it could amount to a protected characteristic and employers should tread carefully if employees raise this as a concern. 

    We expect many businesses will give staff the day off as a gesture of goodwill, irrespective of the legal entitlements. In any case, employers should communicate their decision clearly and quickly to enable employees to make any necessary arrangements (such as childcare given that schools will be shut) and manage employees’ expectations given the publicity surrounding the bank holiday. 

    Brigitte Weaver is a senior associate and Ciara McBrien a trainee solicitor at Katten UK