Our company employs a high proportion of part-time workers. As a result of the bank holidays, those who do not work on Mondays get fewer days off than those who do, and are now demanding they be given extra time off in lieu. What are our legal obligations?
The decision to allow an additional day’s holiday for those who don’t work on a Monday can often be a controversial one. Many employers take the ‘normal working day’ approach, but this means that a part-timer who does not generally work on a Monday will lose out.
While this discrepancy may seem unfair to some part-time staff, a recent court ruling, McMenemy v Capita Business Services Ltd, has stated that it is not in breach of employment regulations. You are within your rights to refuse additional time off to those who do not normally work on a Monday.
The case was brought under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations by a man who worked from Wednesday to Friday. In giving judgment, the Court of Session concluded that his employer had not distinguished between part- and full-time staff, but rather between those who normally worked Mondays and those who did not.
In practice, the best course of action for employers is to pro-rata the bank holidays for part-time workers in accordance with the Department of Trade and Industry guidance. Those with a standard Monday-to-Friday week are likely to be at risk if part-timers lose out.
While this ruling may mean a considerable saving on holiday pay for some employers, the best approach is to ensure that the issue is addressed in your employment contracts and policies to ensure that all employees receive equal treatment.
Employers also need to prepare for changes announced by the DTI. The minimum statutory holiday entitlement under the Working Time Regulations increases from 20 days per year to 24 days from 1 October 2007 and then increases to 28 days from 1 October 2008.
Some employers currently include the eight UK bank holidays as part of a worker’s 20-day holiday entitlement. This change will require those employers to add the eight UK bank holidays to the minimum 20-day holiday entitlement.
By Kirsty Rogers, partner, DWF
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