It is the time of year when there are more bank and public holidays than any other time of the year. No sooner is Easter come and gone, we have May Day and then the Spring Bank Holiday.
This briefing note provides information about the legal rights of employees in relation to bank holidays and how to calculate holiday pay, particularly when an employee works part time.
Statutory holiday entitlement, in line with the Working Time Regulations is 20 days plus 8 bank or public holidays. However, in many sectors of employment such as retail, hospitality, care and some call centres, staff are required to work on bank or public holidays. Contracts of Employment or the Written Statement of Terms and Conditions of Employment are therefore written as a total holiday entitlement of 28 days inclusive of bank and public holidays.
There is, in fact, no statutory right for employees to take bank holidays off work. Any right to time off depends on the terms of the employee’s Written Statement. Furthermore, there is no entitlement to extra pay if required to work on a bank holiday unless this is written into the Statement. However, employees will still be entitled to the full 28 days or any other contractual entitlement in excess of 28 days during the holiday year at normal pay.
Under section 1 of the Employment Rights Act 1996, employers must give new employees a Written Statement of Terms and Conditions of Employment. This must contain terms relating to holiday entitlement, including bank holidays, and holiday pay.
Under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, a part-time worker has the right not to be treated less favourably than a comparable full-time worker on the grounds that they are a part-timer, including entitlement to bank and public holidays.
It may be fair to allow part-time workers to take a bank holiday where their day of work coincides with a bank holiday, particularly if a shift system means that both full timers and part-timers are equally likely to be rostered to work on a bank holiday. However, where workers work fixed days each week, part-timers could be disadvantaged by such a practice. As most bank holidays fall on a Monday or a Friday, those part-timers who never work on these days will be entitled to proportionately fewer days off than full-timers who regularly work on these days. In these circumstances the disadvantage could be removed by giving all part-timers pro rata entitlement to time off in lieu of bank holidays according to the number of hours they work.
CALCULATING HOLIDAY PAY FOR PART-TIMERS
The annual entitlement to holiday should be calculated on a pro rata basis. Therefore, if an employee works 3 full days per week - this is 60% time. Their overall entitlement would, therefore, be 16.8 days i.e. 60% of 28.
If the employee normally works on a Monday or a Friday and the bank holiday falls on a working day the employee may be required to take the day off as the business is closed. If this is the case, it should be included in the Written Statement. However, the employee does not have entitlement to the full day as he/she is only 60% time. Based on an 8- hour day he/she would only be entitled to 4.8 hours. Likewise, if the employee does not work normally on a Monday or Friday and, therefore, would not be working on a bank holiday, he/she would be entitled to 4.8 hours on another day.
For this reason, it is easier to calculate if the entitlement in in hours rather than days.
16.8 days equals 134.4 hours based on an 8-hour day.
The employer should allow the part-time employee to book the pro rata holiday entitlement as annual leave under the organisation’s normal procedure. If the employee is scheduled to work on any bank holiday, they would have to book this as annual leave in hours to take the day off.
Please note there is no entitlement, under the Working Time Regulations, for employees to carry statutory annual leave over into the following holiday year unless an employee has been absent on long term sick leave or is taking family leave, such as maternity leave, adoption leave or shared parental leave.