Bank holidays and the law

To honour the state funeral of Queen Elizabeth II, a bank holiday has been announced for 19 September 2022. Bank holidays can raise tricky legal and financial questions for employers. Read this blog to find out more. 

What are the basics of paid holiday?

Almost all UK workers are entitled to a minimum of 5.6 weeks of paid holiday per year. This is known as ‘statutory leave entitlement’ or ‘annual leave’. 

These 5.6 weeks of paid holiday mean that staff members working 5 days per week are entitled to at least 28 paid holiday days per year. Staff members who work more than 5 days per week are entitled to a minimum of 28 days. 

Part-time staff, who work less than 5 days per week are entitled to paid holiday on a pro-rata basis (ie holiday entitlement is calculated based on the number of days or hours worked each week).

For more information, read How to calculate holiday entitlement.

What is the situation regarding bank holidays?

The Working Time Regulations 1998 do not differentiate between bank holidays and normal working days. This means that employers are not legally required to give staff members paid time off for bank holidays (or to offer additional pay for working bank holidays). However, employers may choose to do this at their own discretion.

The rules regarding bank holidays should be clearly set out in an Annual leave policy or relevant employment contracts (eg an Employment contract or a Zero hours contract). Generally, these documents will set out whether:

  • staff get paid time off for bank holidays
  • staff members’ holiday entitlement is inclusive or exclusive of bank holidays (ie if bank holidays form part of the minimum annual leave entitlement or if they are additional)
  • staff can work on bank holidays in return for a different day off (known as an ‘alternate day’ or ‘day in lieu’)
  • enhanced pay is given to staff members working on bank holidays 

Should employers give staff the 19 September off?

Generally, this will depend on what is written in employment documents (eg contracts and/or holiday policies). For example, employment documents may state that: 

  • annual leave is in addition to all bank and public holidays – here staff would be entitled to time off for all bank holidays in addition to their holiday entitlement
  • annual leave is in addition to the usual bank and public holidays – here staff would be entitled to time off for the usual bank holidays (eg the 8 recurring bank holidays in England and Wales) in addition to their holiday entitlement. Any unusual bank holidays (such as the bank holiday on 19 September) may be given off in addition to the standard annual leave entitlement – employers may make a decision or this can be discussed between employer and staff 
  • annual leave entitlement is inclusive of bank and public holidays – here bank holidays should be taken off, but this forms part of staff’s annual leave entitlement
  • bank and public holidays do not form part of annual leave entitlement – staff do not get time off for bank holidays and instead have to work

What does this mean in practice?

Employers should follow what their employment documents say and grant staff paid leave accordingly. If employment documents do not say anything about bank holidays, employers should speak to their staff and come to an agreement.  

If staff are required to work on bank holidays, staff members cannot typically refuse (this could result in disciplinary action). However, even when not contractually obliged to grant time off for bank holidays, employers should consider whether they wish to do so on 19 September as a gesture of goodwill to staff members and in recognition of the societal significance of the Queen’s state funeral. 

Depending on what their employment documents say, employers could also consider:

  • incentivising staff to work on a bank holiday by offering them enhanced pay or a day off at a later date
  • allowing staff time off in exchange for them working another day (eg working on a Saturday)
  • allowing staff to take unpaid time off

If staff are entitled to time off for all bank holidays, employers need to comply with this.

In all circumstances, it is a good idea for employers to speak to their staff about the situation and come to an agreement with them.

 

For more information, read Employee holidays and the Government’s guidance. Remember that you can always Ask a lawyer if you have any questions or concerns about bank holidays and annual leave entitlement.

 

Rebecca Neumann
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