Almost all workers (including agency workers, workers with irregular hours and workers on zero hour contracts ) are legally entitled to 5.6 weeks’ paid holiday a year (known as statutory leave entitlement or annual leave) This is made up of 4 weeks’ annual leave under the Working Time Directive and an additional 1.6 weeks’ annual leave under the Working Time Regulations. 1.6 weeks represents the number of public holidays in England and Wales. However, unless contractually specified, there is no obligation to use these days on public holidays. There is no statutory right to time off (paid or otherwise) on any public holiday. This is a matter for the contract or, in some cases, down to the employer’s discretion. In many sectors, working on public holidays is a commercial or operational necessity.
An employer can include bank holidays as part of statutory annual leave. What this means is that if for example your 5.6 weeks is equivalent to 28 days then 8 of these may be for you to use on the public bank holiday days where for example your place of work is closed on bank holidays.
This year, we have an extra bank holiday for Her Majesty the Queen’s Platinum Jubilee. Therefore, this year, these are listed as per the below (9 days);
3 January New Year Day Holiday (substitute day)
15 April Good Friday
18 April Easter Monday
2 May May Day
2 June Late May Bank Holiday
3 June Her Majesty the Queen’s Platinum Jubilee
29 August August Bank Holiday
26 December Boxing Day
27 December Christmas Day Holiday (substitute day)
Check your Contract
An employment contract should set out the rules about bank holidays.
The contract may say something like “In addition to bank and public holidays, your annual entitlement to holiday is XX days” This essentially means that you get bank and public holidays in addition to your annual leave entitlement.
Alternatively, the contract may say something like “Your annual holiday entitlement is XX days, this is inclusive of bank and public holidays” This essentially means that should you want to or should you have to take public and bank holidays as annual leave because the workplace is shut then this will come out of your annual holiday entitlement.
An employer should follow what is stated in the contract or risk being in breach of contract.
Legally, since 1 April 2020, an employer has to give to all new employees, a contract on their first working day. Ideally this should be before their first day. This is to ensure that they know what is expected of them, i.e. their hours of work. They also know what they are entitled to, i.e. holidays, any sick pay, etc.
As an employer, if you haven’t issued contracts of employment to all or some of your employees, you should look to do so as soon as possible to rectify the situation, we would always recommend seeking expert advice in this regard. If this cannot be done quickly then you should as a minimum seek expert advice on how to best communicate your position regarding bank holidays.
Part Time Worker
If you have workers that work on a part time basis, in terms of holidays and bank holidays, they will be entitled to a pro rata equivalent of a full time worker.
The position of part-time workers in relation to public holidays is not straightforward. There is no statutory right to paid public holidays but employers must ensure that part-time workers still receive 5.6 weeks’ leave, pro-rated in accordance with the hours they work. It can get complicated where the part-time worker doesn’t normally work on a Monday and the employer assumes that as the worker is off on the bank holiday as the work place is shut, they have had the benefit of the bank holiday. This is not the case.
The part time workers should receive the pro rata entitlement to public holidays. If the work place closes on bank holidays and the part time worker would normally work on those days then they will need to take them as paid holiday. If they do not usually work the day the bank holiday falls on then they will have their pro rata leave to use at a different time.
There are special rules that apply to calculating holiday and bank holiday entitlement where a worker works variable or zero hour contracts (which are discussed below) however, this is a complex area and we would advise that you should seek expert advice.
Her Majesty the Queen’s Platinum Jubilee
To determine whether a worker in entitled to the extra bank holiday you will need to look at the contract of employment. If the holiday entitlement in the contract is worded in such a way that the worker is entitled to all bank holidays, then it is likely that the worker would be entitled to the extra bank holiday. However, if the contact is specific to a number of days inclusive of bank holidays e.g. 28 days inclusive then there would be no contractual entitlement to the extra bank holiday day and should the worker want to have this day off, they would need to book it in the normal way from their existing entitlement.
Some employers may however wish to grant the Jubilee bank holiday as an additional day of paid leave notwithstanding what is specified in their Contracts of Employment.
Where the employer is planning to close the business for the Jubilee bank holiday, then the workers should be made aware of this. Workers should also know whether they are entitled to the extra day’s paid holiday or whether they will be required to use a day from their holiday entitlement. Employers should also ensure that they give their workers the correct notice to take holiday on the Jubilee bank holiday if this falls on one of their normal working days. There are special rules regarding employers giving workers notice to take holiday.
Where an employer is planning to remain open on the Jubilee bank holiday and the worker is entitled to the extra paid Jubilee bank holiday, the employer should ensure that the worker understands how the extra bank holiday should be used in accordance with the employer’s Holiday Policy.
Employers should ensure that all workers are aware of whether or not they are entitled to the extra bank holiday in 2022 as paid leave or not as early as possible so that the worker and employer can plan holidays and holiday cover.
Points to note:
- If it is mandatory for workers to work on a public and/or bank holiday, this should be set out within the Contract of Employment, including whether the worker will be entitled to a day off in lieu of the public and/or bank holiday worked.
- The additional Jubilee bank holiday falls on a Friday and part-time workers who do not normally work on a Friday but are entitled (in accordance with their Contract of Employment) to the additional bank holiday are entitled to a pro rata equivalent of the hours they work.
- Workers on maternity leave continue to accrue annual leave during maternity leave and may, depending on the wording of their Contract of employment, be entitled to an extra day’s leave for the extra bank holiday when calculating accrued annual leave due to them.
What should an employer pay their worker for time taken off on annual leave?
A employer should not pay a worker any less when they are on holiday than when they are working. Put another way, a worker should not be at a financial detriment for taking holiday. The law says for each week of statutory paid holiday a worker takes, they are entitled to a week’s pay.
A week’s pay is worked out according to the kind of hours someone works and how they’re paid for the hours. This includes full-time, part-time, term-time and casual workers.
|Working Pattern||How a week’s pay is calculated|
|Fixed hours and fixed pay (full or part-time)||A worker’s pay for a week|
|Shift work with fixed hours (full- or part-time)||The average number of weekly fixed hours a worker has worked in the previous 52 weeks, at their average hourly rate|
|No fixed hours (casual work, including zero-hours contracts)||A worker’s average pay from the previous 52 weeks (only counting weeks in which they were paid)|
There is a lot of case law regarding what constitutes ‘pay’ e.g, bonuses and commissions so although the above may appear straightforward, we would recommend seeking advice before committing to any specific calculations.
Calculating average hourly or weekly rate
To calculate an average hourly rate, only the hours worked and how much was paid for them should be counted. Take the average rate over the last 52 weeks (not 12 weeks as used to be the case).
A ‘week’ usually runs from Sunday to Saturday. Only use another 7-day period (like Thursday to Wednesday) if that’s how a worker’s pay is calculated.
If no pay was paid in any week, count back another week so the rate is based on 52 weeks in which pay was paid. You can count back a maximum of 104 weeks to find these.
If a worker has less than 52 weeks of pay, use the average pay rate for the full weeks they have worked.
Workers who are paid monthly
To work out a week’s pay for someone who’s paid monthly:
- Calculate the worker’s average hourly pay for the last month. Do this by dividing the month’s pay by the number of hours worked in the month.
- Calculate the weekly pay. Do this by multiplying the average hourly pay by the number of hours worked in a week.
Use the weekly pay calculation for each of the last 52 weeks to work out an average week’s pay.
Rolled-up holiday pay
Holiday pay should be paid for the time when annual leave is taken. An employer cannot include an amount for holiday pay in the hourly rate (known as ‘rolled-up holiday pay’).
If you have any queries regarding Bank Holidays, Holidays or Contracts of Employment please contact a member of the team 03332 005 153