Furlough presents an additional complication for which employers need to ensure they pay their staff correctly for a bank holiday. Our usual list of five things employers need to know about bank holidays becomes seven, with a description of how employers should handle public holidays during furlough and the prospect of an additional bank holiday for 2020 in October half term.
Most of the UK has eight permanent bank holidays per year: New Year’s Day, Good Friday, Easter Monday, May Day (although for 2020 this was replaced by the 75th anniversary of VE Day), Spring Bank Holiday, Late Summer, Christmas Day and Boxing Day. However, Scotland has omissions and additions and Northern Ireland has two extra public holidays in relation to the bank holidays taken in England and Wales.
Bank holidays and annual leave
But how much do you as an employer know about employment law concerning bank holidays? Here are seven things you really should know:
1. There is no statutory right for employees to take bank holidays off work. Any right to time off depends on the terms of the employee’s contract of employment.
2. When an employee works on a bank holiday, there is no statutory right to extra pay – for example “time and a half” or double pay. Any right to extra pay depends on the terms of the employee’s contract of employment.
3. The government has said that it is “considering proposals” by VisitBritain to create a one-off, additional bank holiday in the autumn half term, most likely on 26 October 2020, to help stimulate tourism in the light of the coronavirus pandemic. However, a Downing Street spokesman said it was “worth acknowledging that extra bank holidays do come with economic costs”.
4. If they have employees currently on furlough, employers need to be careful around bank holidays. If, in their employment contract, bank holidays are included in holiday entitlement, employers have two choices. They should pay the employee in full for the bank holiday that falls during furlough, or substitute it with a day’s annual leave to be taken at a later date. However, if the furloughed employee is not entitled to bank holidays off in their employment contract, a bank holiday will have no effect on their pay during furlough.
Bank holidays 2019, 2020 and 2021
5. A part-time worker has the right not to be treated less favourably than a comparable full-time worker. This includes entitlement to bank holidays.
The best practice – and safest – approach to part-time employees is to give them a pro-rated allowance of paid bank holidays, irrespective of whether or not they normally work on the days on which bank holidays fall.
6. If an employee is required to work on bank holidays under the terms of their employment contract, the employee cannot refuse to work, even for religious reasons.
However, employers should be aware that a refusal to grant Christian employees time off for any of the bank holidays with religious significance could amount to indirect religious discrimination if it places them at a particular disadvantage when compared with employees of other faiths, or non-religious employees.
7. If employers have worded contracts to say that employees are entitled to “statutory entitlement plus bank holidays”, this no longer denotes 20 days’ leave plus eight bank holidays. Following the increase in statutory minimum leave from four to 5.6 weeks in 2009, this wording grants 28 days’ holiday with eight bank holidays on top. Check your employment contracts to determine if this is an issue.
This style of contract wording can also mean employees receiving more bank holidays or fewer bank holidays than are required. This is an issue where the employer has a holiday year that runs from April to March and the timing of Easter weekend is such that the employee could receive as many as 10 bank holidays one holiday year or as few as six bank holidays the next year.
The last time this affected employers that use such wording was in 2018, when Good Friday was 30 March and Easter Monday was 2 April. The following year, Good Friday landed on 19 April 2019, while Easter Monday was on 22 April 2019. For a holiday year running 1 April 2018 to 31 March 2019, employees would appear to have lost out.
The next time this will be an issue for contracts that use such wording will be in 2024, when Good Friday is 29 March and Easter Monday is 1 April. This means that the 2023-24 holiday year would have nine bank holidays and 2024-25 would only have seven.
This article was first published in 2009 and last updated on 19 May 2020.