Given its importance to a substantial proportion of the workforce, it is surprising that the issue of part-time workers’ entitlement to paid Bank Holidays remains unclear. The dilemma is whether to grant part-timers only those Bank Holidays that fall on days they would normally work, or whether they should be entitled to take a proportionate amount of the eight statutory days.
The problem is that at least four Bank Holidays fall on a Monday, and there is a good chance of another two doing so as well (as those that fall on a weekend are taken on a Monday). This situation actually arises this year, when seven out of eight fall on a Monday or Tuesday.
Relying on the ‘pro-rata principle’ in the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2002, most employers grant paid Bank Holidays in proportion to hours worked. So a person working three days a week (60%) will be entitled to 4.8 days, rounded up to five.
But this approach will disadvantage part-timers who work from Monday to Wednesday in a year where six bank holidays fall on a Monday. They will have to take one of those Bank Holidays out of their remaining annual leave entitlement, whereas an employee who works Wednesday to Friday in the same year will effectively be granted up to four additional days’ holiday.
Clear as mud
In the recent case of McMenemy v Capita Business Services Limited (EAT 79/05), the employer ran a seven-day-a-week operation. It provided that paid Bank Holidays could only be enjoyed by those who normally worked on the days on which the Bank Holiday fell. Although most of the full-timers worked Monday to Friday, they could work on any five days. One had in fact worked from Tuesday to Saturday without entitlement to the Monday Bank Holidays.
McMenemy worked from Wednesday to Friday and brought a claim that he was not receiving his proper holiday entitlement.
Although the Employment Appeal Tribunal (EAT) found that he suffered a detriment, it held that this was not “on the ground” that he was a part-timer, since a full-timer who did not work on Mondays would also suffer under the policy. Rather, it was because he did not work on Mondays.
The EAT was persuaded that the detriment was justified in McMenemy by the fact that the employer ran a seven-day-a-week operation and the policy was designed to achieve overall fairness. But would the same apply equally to the standard working week of five days?
While there would be no comparable full-timers who would miss out on Bank Holidays, the McMenemy argument could be applied, as a part-timer working from Monday to Wednesday would not be disadvantaged (and the detriment to someone who worked Wednesday to Friday would therefore be because they did not work on Mondays, rather than because they worked part-time).
This case usefully reminds us that when looking at part-timers’ rights, it is important to look not just at whether there is a detriment but also what causes that detriment.
Shades of grey
But even after McMenemy, there is no right or wrong answer. While many in HR will still consider that a pro-rata approach is the fairest, adopting a policy of awarding the days that fall on normal working days – with a cogent reason for the policy – may not be in breach of the law.
The government is proposing to increase the annual leave entitlement under the Working Time Regulations to include an entitlement to Bank Holidays, but this will only clarify the situation for part-timers if the government expressly deals with it in the amended regulations.
- Part-timers must not suffer a detriment on the ground that they are part-time workers, unless it can be objectively justified.
- The justification requirement will apply to an employer’s policy on granting Bank Holidays.
- A policy where Bank Holidays are awarded in proportion to the number of days worked is likely to be justifiable.
- It is possible to justify giving Bank Holidays only if they fall on a part-timer’s usual working day – with good reason.
Richard Linskell is the secretary of the Employment Lawyers Association