The Government has decided to add an extra day's bank holiday in 2012, to celebrate the Queen's Diamond Jubilee, but how will this fit in with statutory holiday regulations? Legal expert Nicola McMahon outlines the issues involved.
In the hospitality industry public holidays can be great for business. In fact, opening for business on bank holidays is usually a commercial necessity. In 2012, the Government is moving the late May bank holiday to Monday 4 June and adding an extra bank holiday on Tuesday 5 June so that there will be a four-day weekend in celebration of the Queen's Diamond Jubilee.
But how will this new bank holiday fit in with the current statutory holiday regulations and how should employers deal with this change?
Under statute, all full-time workers are entitled to a minimum of 5.6 weeks holiday per year. This equates to 28 days per year for an individual who works a typical five-day week. Part-time workers are also entitled to 5.6 weeks holiday, calculated pro rata according to the number of days or hours they work each week.
This minimum level of holiday cannot be replaced by a payment in lieu, except when employment is terminated and the individual has not taken all of their entitlement up until the end of their employment.
Statutory holiday allowance includes bank and public holidays (eight days per year in England and Wales and nine in Scotland). There is no law stipulating the statutory right to time off, whether paid or unpaid, on any public holiday. The decision whether employees have to work or not depends on the contract of employment, or if the contract is silent and there is no established practice, it may come down to a management decision.
Employers may allow their workers to take off more holiday than the statutory minimum and this may be detailed in their contract. A contract can be more generous in the allocation of holiday than the statutory requirements, but it cannot be more restrictive.
Given that the right to take holiday is governed partly by statutory right, and partly by contractual rights, the eligibility for the new bank holiday in 2012 will vary among workers, depending on the terms of their contracts of employment.
An individual whose contract simply states that they have a set number of days holiday each year, including all bank holidays, will not be entitled to an extra day off in 2012 unless employers decide to allow them an extra day.
Some individuals may be forced to use their leave on both 4 and 5 June if their employer is closed for those days. But others, particularly in the hospitality industry, may find themselves having to go to work and use their annual leave entitlements on other days.
When calculating holiday entitlements, employers should take great care to ensure their contracts clearly state the workers' rights and that these are fairly applied to all their workers.
Employers should ensure their employees' contracts of employment specify the following:
- the dates for calculation of their holiday year, eg, 1 January to 31 December or otherwise;
- the number of days' or proportion of weeks' holiday each employee is entitled to, whether they work full-time or part-time (and ensure this reaches the statutory minimum);
- whether bank and public holidays are included in the specified holiday entitlement;
- whether employees are required to work on bank holidays and, if so, any alternative benefits offered for doing so, for example a day off in lieu or additional payment.
The right to take paid holiday applies to a wider group than "employees" as the legislation specifically refers to "workers". Therefore, even if an individual does not have the breadth of employment rights, they may be entitled to take time off work and be paid for doing so.
Nicola McMahon, Charles Russell LLP