Why employees might not be entitled to the 2022 bonus bank holiday
There are few things Brits love more than a summer bank holiday, and next year we will be treated to one more than usual.
2022 will be the Queen’s Platinum Jubilee, marking 70 years on the throne. As the first British monarch to reach this historic milestone, celebrations are set to be big. The Culture Secretary has announced an “extensive programme of public events” in London and other major cities – comprising of street theatre, dance, circus acts and marching bands – as well as traditional nationwide fanfare and local community events.
To mark the occasion, the government has confirmed an additional bank holiday on Friday 3 June. The traditional late May bank holiday will also be pushed back to Thursday 2 June, meaning employees may be able to enjoy an extra-long four-day weekend.
The key word here is ‘may’. As an employer, you might be wondering whether employees can demand this extra day off. The answer is, it depends.
The law on working bank holidays
Unfortunately for employees, there is no statutory right to time off for bank/public holidays. However, employers may choose to include these days as part of employees’ annual leave entitlement.
Therefore, before employees rush to buy union jack bunting or book mini-breaks, both parties should refer back to the contract of employment, as whether employees are entitled to time off on 3 June will very much depend on the specific wording of such clauses.
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What to look for
Within an employee’s contract, holiday entitlement will typically be expressed as either:
- X days’ holiday, plus bank holidays; or
- X days’ holiday, which includes bank holidays.
This will be a key factor in whether they can take advantage of any new bank holidays.
For example, if the contract states something along the lines of:
“You are entitled to X days’ paid holiday each year. In addition, you are entitled to take public holidays.”
then as bank holidays are included on top of the employee’s annual leave allowance, and as the contract doesn’t stipulate the exact number they are entitled to, the employee will be contractually entitled to take and be paid for the extra bank holiday on 3 June.
However, the employee’s contract may instead state:
“You are entitled to X days’ holiday during each holiday year. This is inclusive of any of the normal public holidays that you are permitted to take. The business recognises the following public holidays…”
In this situation, because bank holidays form part of the employee’s set holiday entitlement, and because you have expressly provided the public holidays in question, the employee won’t have a contractual right to the extra bank holiday in 2022.
Specific advice for schools
School support staff on the Green Book will be entitled to the additional bank holiday, with a normal day’s pay for this (pro-rata for part-time employees).
In addition, the Department for Education has laid regulations to reduce the school year from 190 days to 189 days for the academic year 2021-22, as a result of the additional bank holiday. For many staff, this may result in a reduction in their working year. The question is, where does that leave Term-Time Only (TTO) staff’s pay and leave entitlement?
The Green Book Part 4.12 Para 13.2 clearly states that “If the Government announces an additional public holiday(s), a TTO employee’s pay should reflect the additional public holiday or an additional period of paid leave during term-time could be granted”.
For those TTO staff who are contracted to work either 190 or 195 days per year, the NJC has advised that there is no need to adjust pay as they will receive the same pay but for one less day’s work. However, for some TTO employees, if their working pattern is such that they wouldn’t actually be working on that day, so there is no reduction in the working year, you will need to consider adjusting their pay to reflect the additional pro-rata paid holiday entitlement for the bank holiday.
For more information, see the guidance and worked example given by the NJC.
For TTO staff not covered by the Green Book, similar considerations will apply if you are giving comparable full-time staff the bank holiday to avoid claims of less favourable treatment on the basis of their part-time status.
What if we're closed?
If you intend to shut up shop for the day, and your contracts don’t give employees the right to the extra bank holiday, employers have two options.
First, you can require employees to use a day of their normal annual leave entitlement on 3 June so that they don’t miss out on a day’s pay. Employers have plenty of time to do this, but it would make sense to get the date in the diary well in advance. We recommend confirming this in writing to avoid any issues.
Alternatively, you could choose to permit an extra day’s paid leave as a discretionary gesture. After the events of 2020/21, the nationwide celebrations – which are being described as “something of a reopening ceremony for the United Kingdom” – could provide a much-needed morale boost as well as an opportunity to show your appreciation to your staff. Given the well-documented benefits of reward and recognition, this may pay dividends.
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