With the winter behind us, many workers will be looking forward to the summer bank holidays. However, those in the hospitality industry are quite likely to be working on bank holidays and quite a few of these workers may be part-time members of staff. To help understand what is involved, Darab Khan provides a broad overview and advises on a practical example.
Bank holidays in England and Wales are Easter Monday, Good Friday, the first and last Monday in May, the last Monday in August, 26 December (if not a Sunday), Christmas Day, 27 December, (if either Christmas Day or Boxing Day falls on a Sunday) and 1 January. It is also possible to have any other day proclaimed a bank holiday, as we experienced during the Queen’s jubilee in 2016.
There is no automatic right to paid time off on bank holidays. Workers who are not contractually entitled to take leave on bank holidays are required to make holiday requests on those days, in the usual way. However, in actual practice, the majority of workers’ contracts will provide for a right to take paid bank holidays or have this implied as a result of custom and practice within the business.
Workers can be required to work on bank holidays, unless the terms of the contract provide otherwise. For example, where the contract specifies that a worker is entitled to take bank holidays as annual leave or where the bank holiday falls outside a worker’s normal working days, they would not be required to work on that day. Where an employer does not have the right to require a worker to work on a bank holiday, they can still seek the worker’s agreement to work and offer an incentive to do so (which could take the form of extra pay or additional time off).
The relationship between bank holidays and part-time workers is a complex one, given some lack of clarity in the governing legislation. However, it is unlawful to treat a part-time worker less favourably than a comparable full-time worker, including in relation to entitlement to bank holidays.
Example: when a bank holiday falls on a part-time worker’s non-working day.
For example, let us consider a restaurant with two waiters. One works on Monday and Tuesday, the other is full-time. The restaurant’s contract confirms that holiday entitlement is 5.6 weeks (pro rata for the part-time waiter), plus bank holidays. Some bank holidays consistently fall on a Monday every year. How should the restaurant deal with this, to avoid one waiter receiving more days’ holiday than the other?
The waiter who does not work on Mondays is obviously disadvantaged if he is only permitted paid time off for bank holidays on days when he would normally work. This could provide the restaurant with a serious problem as it could lead to a claim in the Employment Tribunals under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, which entitles part-time workers to be treated equally with full-time colleagues.
There is a sensible way to treat both workers equally in such circumstances. This is achieved by the restaurant providing a pro-rated entitlement to all public holidays by way of specific wording in the contract of employment. In order to avoid treating a part-time worker less favourably than a full-time worker, employers should provide a pro-rated allowance of paid bank holidays based on the number of days they work, irrespective of the actual day on which a bank holiday falls.
Darab Khan is a solicitor at Archon Solicitors, a niche employment law firm based in the City of London www.archonlaw.co.uk