What are workers’ rights when it comes to bank holidays? While some companies have traditionally given a day in lieu or paid overtime to those who worked on bank holidays, this is becoming less common. We attempt to unravel some of the common misunderstandings about bank holidays.
What does your employment contract say?
All workers, that is people who provide their work personally and are not genuinely self-employed, are guaranteed a minimum amount of holiday by law under the Working Time Regulations 1998 (the Regulations).
However, the Regulations just set out the minimum which must be given, some employers are more generous than the law requires and give workers extra contractual holiday. All employers must meet at least the basic requirement set out in the Regulations.
The position will entirely depend on what is in the employment contract – this could be what is written down or what has been established by practice. Often, additional rules and policies relating to holiday entitlements are found in staff handbooks. You will need to look at all relevant documentation carefully to understand your legal entitlements.
What is the starting position?
There are generally eight bank and public holidays each year in England and Wales (more in Scotland and Northern Ireland), see: https://www.gov.uk/bank-holidays. However, there is no legal right not to work on a bank holiday or to be paid more if you do work on a bank holiday (or to be given a day in lieu).
The European Working Time Directive (which the Regulations implement in the UK) only provides for a minimum of 20 days holiday a year. However, the Regulations were amended in 2009 so that workers in the UK are now entitled to 5.6 weeks (up to a maximum of 28 days for full-time workers) annual leave each year; employers may include bank holidays in a worker’s statutory annual leave but it all depends on how the employment contract is worded.
For example, if the holiday clause says “25 days plus bank holidays” then it is clear that the entitlement is intended to be in excess of the statutory minimum. However, if it simply says “28 days holiday a year” then, unless there is a custom and practice of people taking additional leave on bank holidays, it will be interpreted as including bank holidays.
Getting employment status right
There have been numerous examples lately of workers successfully bringing claims in the employment tribunal that they were not given paid holiday because their employer wrongly believed they were self-employed and therefore not covered by the Regulations. As a very broad rule of thumb, where an individual is providing work personally, on a regular basis to the same employer they are likely to be considered workers and should be entitled to a minimum amount of paid holiday.
Part-time workers are entitled to a pro-rated amount of statutory annual leave. For example, someone who worked three days a week would be entitled to 5.6 x 3 days holiday which equates to 17 days (rounded up). Part-timers are entitled to be treated no less favourably than a comparable full-time employee so the safest and fairest approach is to give a pro-rated amount of bank holidays each year, regardless of whether or not employees normally work on the day on which a bank holiday falls.
Am I entitled to be paid more if I work on a bank holiday?
Not unless your employment contract provides for this. You may have a contractual right to additional pay, but if it is not in your contract you can’t insist upon it. In some sectors such as retail, bank holidays are now treated very much as a normal working day and if you want to be absent on such a day you have to book your holiday in the usual way. In other sectors such as financial services, offices will be closed and everyone is required to be on leave on bank holidays.
Can I insist on taking a bank holiday as leave?
There is no legal right to take bank holidays off. If the bank holiday is one that has a particular religious significance then refusing a request for leave from a Christian employee on that day could be indirect religious discrimination – if this places them at a particular disadvantage when compared to a non-Christian. This could also amount to indirect sex discrimination if it meant a woman was unable to put in place childcare on that day. However, these are not easy claims to win as an employer may defend itself by arguing there was a legitimate business need for its policy of not granting leave on a bank holiday.
What if I am on maternity leave?
You can’t “mix” different types of leave and take maternity (or other parental) leave at the same time as annual leave. If you want to take paid holiday you have to bring your maternity leave to an end first.
However, all your contractual benefits, including annual leave will continue to accrue while you are on maternity leave and you must be allowed to take this once your maternity leave comes to an end (carrying over into a subsequent holiday year if necessary).
If your contract provides for “28 days holiday” then you will be entitled to 28 days. However, if your contract provides for “28 days plus bank holidays” the position is less clear cut. Some employers have paid women on maternity for their bank holidays. While many workers may be quite happy with this arrangement, it is not strictly, legally correct. Under the Regulations, employers may only pay in lieu of statutory holiday on the termination of employment. In addition, women on maternity leave are not entitled to remuneration (pay), which arguably, such a payment is. This question is highly fact specific so, in the event of dispute it is always best to take legal advice.