Wake-up call – Can employees automatically take this year's extra bank holiday?

With an additional bank holiday this year for the Diamond Jubilee, are you duty bound to offer staff an extra day off? Philippa O'Malley explains what employees are entitled to

The problem
There is an additional bank holiday this year to celebrate the Diamond Jubilee and my employees have automatically assumed that they will be given the day off, whereas I am not so sure I want to. Are employees automatically entitled to take this additional holiday?

The law
You are right that, as part of the Diamond Jubilee celebrations, an additional bank holiday has been announced for Tuesday 5 June. This brings the total number of bank and public holidays in England and Wales in 2012 up to nine. At the same time, the late May bank holiday has been moved to Monday 4 June, which means many people will be able to enjoy a four-day weekend.

By law, employees are entitled to a minimum of 5.6 weeks' annual leave each year (which is 28 days for full-time workers), but they may have a higher entitlement under their employment contract.

There is, however, no statutory right to paid leave on bank and public holidays. Employees may be given paid leave on a bank or public holiday, which can be counted towards their minimum entitlement, and there may be an express entitlement in their employment contract to time off on bank and public holidays.

Expert advice
The first step is to check your employees' contracts to determine what their annual holiday entitlement is and whether this includes any additional bank holidays. For example, if an employee is entitled to "20 days' holiday plus bank holidays", this would include the additional day on 5 June and the employee will be allowed to take this as paid leave. However, if the entitlement is stated to be "28 days' holiday including bank holidays" or "20 days plus eight bank holidays", then there is no automatic entitlement to take any extra bank holidays.

Where the employee is entitled to take 5 June as holiday, this could cause problems if you need some or all employees to work that day. Check whether the contract allows you to specify that certain days may or may not be taken as holiday or whether the employee can be compelled to work on a bank holiday. If so, you will need to allow the employee a day off in lieu to be taken later in the year.

Even if your employees are not automatically entitled to take 5 June off, insisting that they work could cause a great deal of angst and so you may wish to make a management decision allowing them to take the day as an extra holiday, whether paid or unpaid. If this is not practical, or if you need some or all of your staff to work on 5 June, consider allowing them a day of in lieu (again, whether paid or unpaid) that they can take later in the year.

Check list

â- If employees are not entitled to the extra day, consider allowing them to take the day as unpaid leave.
â- If you need staff to work that day, consider allowing an additional day's holiday, whether paid or unpaid, in lieu.

Beware!
Even if there is no entitlement to an extra day's holiday, many employees are likely to want to take the day off using their usual holiday entitlement to take advantage of the four-day weekend and to enjoy the Jubilee celebrations. Consider how you will deal with a number of competing holiday requests, for example, on a first-come, first-served basis, and make sure you deal with all requests fairly.

Contact
Philippa O'Malley is an employment solicitor at Boodle Hatfield
pomalley@boodlehatfield.com