Additional Bank Holiday

The extra bank holiday next is raising a few questions, so I thought I would email you to clarify the situation.

Sometimes additional public holidays are granted by Royal Proclamation. There is an additional bank holiday on 19 September 2022 for Queen Elizabeth II‘s funeral. There was also another in June 2022 for the Queen’s platinum jubilee.

Employers need to decide how they will approach these upcoming additional days off. This will be determined to some extent by the wording in the contract. Where the contract entitles employees to take as paid leave “all bank and public holidays”, the employer will have no choice but to grant the extra day in the usual way or negotiate otherwise.

Where the contract requires workers to work on “all bank holidays”, the employer can require them to work on an additional day. If they are paid a higher rate for working on a bank holiday and the contract does not limit the number of bank holidays to which the higher rate applies, the employer must pay that rate for the additional day.

However, where the contract limits entitlement to a day off work (or to a higher rate of pay where bank holidays are worked) to the “usual eight” bank holidays,  or your contract may state the employee is entitled to 28 days of holiday and this is inclusive of bank holidays, the employer will need to decide its policy in relation to the additional day.

Giving Employees the Day Off

If the employer chooses to give its workers the day off as an extra day’s paid holiday (or pay them a higher rate if they work on that day), it should express this as being a non-contractual discretionary measure that applies only during the year in question. Otherwise, workers may, in the future, have grounds to argue that time off (or the higher rate of pay) on additional bank holidays is a contractual right, implied by custom and practice.

If workers will be required to take the additional day off out of their existing holiday entitlement, the employer will need to plan ahead to ensure that it gives them the requisite notice.

If some or all workers will be required to work on the additional public holiday, the employer may wish to consider a one-off discretionary day off in lieu, as a gesture of goodwill. Where workers will be treated differently, for example, one receptionist out of three is required to work but the other two can take the extra holiday days as leave, the employer should have objective criteria for this requirement and the choice of who will work, to minimise the risks of a discrimination claim (for example because of sex or race). In this scenario, the receptionist who works on the bank holiday must be compensated either by being paid or being granted a day off in lieu.

Keeping staff happy with your bank holiday policy

Employees would have heard that there is an extra bank holiday and may assume they are entitled to a paid day off. An alternative would be to ask staff to come in and perhaps allow those that are interested an extended lunch break to watch the proceeding on a screen.

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