Are employees automatically entitled to additional bank holidays, such as the one we recently enjoyed for the Platinum Jubilee? Nicola Smyrl has the answers…

LAST month we saw an extra bank holiday to celebrate the Queen’s Platinum Jubilee, meaning there’ll be nine rather than eight bank holidays in 2022. Many employers have queried whether this means employees are automatically entitled to additional time off in 2022.

There’s no statutory right to the additional bank holiday and the position will depend on the wording of the employee’s employment contract. Employers considering advising staff that they’ll not be entitled to the additional bank holiday, will need to check the wording of the contract carefully to ensure you’re acting in accordance with its terms.

The contract may or may not specify that entitlement to bank holidays is limited to the eight usual bank holidays. For example, if the employment contract states that the employee is entitled to:

• X days holiday plus bank holidays – means the employee will be entitled to the extra day of holiday. The contractual wording will include all bank holidays, not just the usual eight
• X days holiday plus the usual bank holidays – means the employee won’t be automatically entitled to the extra day of holiday as the additional bank holiday for the jubilee is unlikely to be regarded as a ‘usual’ bank holiday
• X days holiday plus eight bank holidays – means the employee will not be entitled to the extra day of holiday. The contract clearly states that the entitlement is limited to eight bank holidays
• X days holiday inclusive of bank holidays – this is unlikely to give rise to an automatic right to an extra day of holiday entitlement because the total number of days is clearly stated in the contract, inclusive of all bank holidays.

Where the employee isn’t automatically entitled to an additional bank holiday, employers can still exercise their discretion to award the additional day to employees.

Other points to consider
Working on bank holidays – even where an employee may be entitled to an additional bank holiday based on the wording of their contract, this doesn’t necessarily mean the employee was entitled to be off work on 2 and 3 June 2022. In many industries bank holidays are their busiest times and it’s common for staff to work on bank holidays, which may require employers to allow staff to take a day off in lieu at another time.

Alternatively, as the additional bank holiday is in excess of statutory minimum holiday entitlement under the Working Time Regulations 1998 (WTR), consideration could be given to making a payment to staff in respect of the additional day.

Pay for working on bank holidays
If the employee is entitled to the extra bank holiday under their employment contract, it’s likely if they work on these days, any enhanced rate of pay for working on bank holidays would also apply. If there’s no automatic entitlement to the extra bank holiday, the employer may have discretion about whether enhanced rates for bank holiday working apply. Careful consideration will need to be given to the relevant contractual provisions.

Parttime employees
The position for part-time employee is the same as for fulltime employees, save that any entitlement can usually be calculated on a pro-rata basis. Employees who don’t work on Fridays shouldn’t be deprived of the additional day just because of their normal pattern of work, as this may fall foul of legislation protecting parttime employees.

What should employers do now?
Many employees, especially those who don’t usually work bank holidays, may assume that they are automatically entitled to take an additional day off this year. It is therefore important for employers to decide their approach and communicate this to staff as early as possible.

For employers intending to deny the additional bank holiday, consideration should be given to how this will affect staff morale, particularly at a time when many businesses are struggling to recruit and retain staff.

Some employers may notify staff that they are not entitled to an additional bank holiday but that the business will still be closed on 3 June 2022. If this is the case, employers will need to give staff adequate notice of the requirement to take a day of their ordinary holiday entitlement on this day.

Under the WTR, at least two days’ notice must be given to take one day of holiday. However, the employment contract may provide for a longer period and it would be best practice to give as much notice as possible.

For employers intending to let staff take the additional bank holiday, even though the employment contract does not provide for this, it would be a good opportunity to explain to staff that they have been given an additional benefit at the discretion of the employer.
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Nicola Smyrl is a partner at Taylor Walton specialising in discrimination law and business immigration.