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HCR Law Events

11 October 2022

Bank and public holidays: is there a right to take these as paid time off?

The Government announced recently that Monday 19 September 2022 was to be a national bank holiday to coincide with the Queen’s funeral. Many employees did indeed take that day off as a paid holiday.

There may well be another, extra, bank holiday next year for the Coronation of King Charles III, but is there a right to take paid time off on bank or other public holidays?

Bank and public holidays

The term ‘bank holiday’ means that they are either fixed within a particular statute or given by way of Royal Proclamation. For example, New Year’s Day, or the next working day, has been a bank holiday each year by Royal Proclamation since 1974.

Other ad-hoc bank holidays, such as the recent one for the Queen’s funeral and for Jubilees, are sometimes also given by Royal Proclamation.

The term ‘public holidays’ covers both bank holidays and traditional common law holidays. The latter includes Good Friday and Christmas Day.

Is there a legal right to take any public holiday off as paid leave?

The starting point is that the answer is ‘no’. There is no statutory right to time off on a public holiday, paid or otherwise.

Instead, whether an employee can be required to work on a public holiday is a matter for their individual contract of employment.

While perhaps surprising that there is no statutory right to time off on a public holiday, remember that in many occupations (such as those in the emergency services) working on public holidays is a necessity.

The contract of employment

It is, therefore, a matter of looking at the individual contract of employment to see whether an employee is entitled to time off (paid or otherwise) on a particular public holiday.

For example, some contracts state that the employee is entitled to all the ‘usual’ bank and public holidays. Strictly speaking, this would mean that the recent public holiday for the Queen’s funeral was not an entitlement under that particular contract of employment, nor would there be an entitlement for the prospective coronation.

Similarly, where the contract of employment specifically sets out the eight usual public holidays, there is no entitlement to any new public holidays – such as for a coronation, jubilee or a funeral.

Where, however, the contract simply states that the holiday entitlement is, say, 20 days plus bank and public holidays, the employee would be entitled to any additional public holidays which are proclaimed.

As there is no statutory right to paid time off for bank or other public holidays, any entitlement within the contract of employment to such paid time off is simply included as part of the overall minimum statutory holiday entitlement for employees under the Working Time Regulations. For a full-time employee, this is 28 days per holiday year.

What about part-time workers?

Part-time workers are entitled to 5.6 weeks’ holiday each holiday year, in the same way as a full-time worker.

The difference, however, is that the part-time worker’s 5.6 weeks reflects their part-time working days.

As an example, a part-time worker who takes 1 of their 5.6 weeks off and who works three days a week, is entitled to three days paid holiday during that one week.

What about the position, however, of part-time workers and bank and other public holidays?

Again, there is no statutory right to paid public holidays for any employee, whether part-time or full-time. However, a significant number of employers only give the ability for a part-time worker to take a public holiday as paid time off if the day in question falls on a day when they would otherwise be at work.

This means, to use the recent example of the Queen’s funeral, if an employee would not ordinarily work on a Monday, many employers would not permit that part-time worker to have an additional day off in lieu of the public holiday.

This, on the face of it, would mean that the part-time workers are being treated less favourably than comparable full-time workers, something which is made unlawful by legislation.

However, the position is not entirely clear.

The current government guidance on the calculation of holiday entitlement for workers on different types of contract does not address this point. There was a case (McMenemy v Capita Business Services Limited) some years ago which said that not giving a part-time worker an additional day off was not unlawful, as the reason for the different treatment was simply because of the specific day of the week on which the employee did not work.

In other words, if the part-time worker had worked on a Monday but not on a Wednesday, they would have received the additional day off. The principle of that case was that the less favourable treatment was not due to the employee being a part-time worker, but instead down to the day on which the employee did or did not work.

There is some doubt, however, over the principle in that case, and many employers will adopt the safer approach of permitting the part-time worker to have an additional amount of time off. This not only avoids the risk of unlawful discrimination claims being made against them, but also maintains good employee relations.

The current thinking is that next year’s coronation will be proclaimed to be a public holiday. Employers may, therefore, wish to review their contracts of employment in good time before then to know where they stand on the issue of their employees taking the time off as paid leave.

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About the Author
Lynne Adams, Legal Director, Head of Immigration

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