Many employers are asking whether their employees are entitled to take time off for the additional national Bank Holiday for the State Funeral of Queen Elizabeth II which has been announced by the Government for Monday 19 September 2022. More information can be found via the below link:
This bank holiday will mean that the rather than the usual eight bank holidays in England, this year there are ten (after also including the Bank holiday on 3 June 2022 for the Platinum Jubilee). Many of our employer clients have asked whether they are required to give the additional bank holiday to their employees as an extra day of leave. The answer is that it depends on the terms in the employment contract.
Review your employment contracts
Employers should check the employee’s employment contract to see how the holiday entitlement terms are worded.
If the employment contract indicates that an employee is entitled to bank holidays in addition to their annual holiday entitlement but it does not state the number or specific days of the bank holidays, it will be interpreted that employees will be entitled to holiday on all bank holidays.
Alternatively, if the employment contract says that the employee is entitled to eight bank holidays (in England) or the “usual” bank holidays, or states that bank holidays are included in the employee’s annual holiday entitlement of X days, the employer will not be required to give the 19 September 2022 as an additional day of paid holiday.
The following are some examples of common wording included in employment contracts. We have explained what the interpretation of the example wording will be this year.
|Does this trigger an entitlement to an additional bank holiday?
|The employee is entitled to 28 days’ paid holiday per holiday year (inclusive of bank holidays in England and Wales).
|No, the contract does not provide for an additional entitlement to the Platinum Jubilee bank holiday in this clause. This means that the employer can choose whether to agree that an employee can take time off on the extra bank holiday. Holiday is limited to 28 days in total so if employees are given this day off as holiday (or a day in lieu), this will reduce the number of days left for them to take on the days they choose.
|The employee is entitled to 20 days’ paid holiday per annum plus bank holidays in England and Wales.
|Yes, the number of bank holidays are not specified and therefore this would be read this year as the right to take time off on the 9 bank holidays.
|The employee is entitled to 20 days’ paid holiday per annum plus bank holidays in England and Wales or a day in lieu where required to work.
|Yes, the employee is entitled to the additional bank holiday. However, the employer can require the employee to work on any of the bank holiday. If required to work the employer must give the employee a day in lieu.
|The employee is entitled to 20 days’ paid holiday per annum plus the usual bank and public holidays in England and Wales.
|No, the employee is entitled to the ‘usual’ eight bank holidays, which will not include the Queen’s Platinum Jubilee bank holiday. If the employee wants to take the extra bank holiday as a day of leave, they will need to request it in the usual way and use one of their days of holiday.
Failure to honour the contractual rights outlined in contracts of employment could risk ‘Breach of Contract’ claims being brought against your Company
In addition to contractual wording, employers should also consider what they did previously with an additional bank holiday (the Jubilee Day). If employers gave the additional day of holiday previously, then employees may consider that it is an implied term of their contract that they will be given it again on this occasion.
If there is no contractual right to the additional Bank Holiday, employers may decide to remain open and operational on this day, thus requiring employees to work. If this is decided, early communication of intentions and expectations is highly advisable. This is even more important if a discretionary Bank Holiday was granted for the 3 June 2022 (Jubilee Day).
It is important that part-time employees are treated in the same way as their full-time colleagues, along with any who may be on Maternity Leave, with entitlements pro-rated and/or accrual to reflect to avoid any potential discrimination claims.
Regardless of the contract terms, employer may decide to give this as a day of leave anyway. If they do this is likely to be well received by employees. It may help employers to retain and incentivise employees during what has been coined “the Great Resignation”.