Bank holiday rights at Christmas

 

It’s the time of year of multiple bank holidays. But what are you rights if you have to work over the festive period? Workingmums.co.uk has some advice from our experts on bank holiday entitlement.

Do part timers get the same bank holiday entitlement as full timers even if they don’t work on Mondays when most bank holidays fall?

Employees are entitled to a minimum of 5.6 weeks paid annual leave. This is 28 days for someone who works five days a week. Bank and public holidays may be included in the minimum entitlement and there is no statutory right to be paid bank and public holidays on top of that entitlement. Part-time workers are entitled to the same amount of holiday pro rata.

According to HR expert Anna Docherty, part-timers should not be treated less favourably than comparable full-timers in their entitlement to public/bank holidays. “Allowing full-timers the day off, but not part-timers, is clearly less favourable treatment and unlawful,” she says. “To comply with the law, in some circumstances employers may give workers a paid day off if their day of work happens to coincide with the public holiday, without giving time off in lieu to those who would not ordinarily work on that day. This should produce a fair result where a shift system means that full-time and part-time workers are equally likely to be scheduled to work on a public holiday. However, where workers work fixed days each week, such a practice could put part-timers at a disadvantage. This is because most bank/public holidays fall on a Monday and those who do not work Mondays will be entitled to proportionately fewer days off. In many workplaces, these workers will predominantly be part-timers.”

To remove any disadvantage, she says a common approach is to give all workers a pro rata entitlement of days off in lieu according to the number of hours they work, with any bank holidays that fall on your normal days of work having to be ‘booked’ from their holiday entitlement.

Anna states: “There is no one “formula” for this, as long as employers are treating full time and part time employees consistently and fairly. Many employers will have a policy laid down for this or there may be a reference to it in your contract of employment.”

Can my employer change my bank holiday entitlement?

Employment lawyer Laura Livingstone says: “Your employer cannot suddenly reduce your holiday leave entitlement without your consent and without consultation. If he or she does so, then you potentially have a breach of contract claim which could entitle you to resign and make that claim. Also you might have an unlawful deduction of wages claim if the likely result of this is a change/reduction in pay.”

Bank holidays and maternity leave

According to lawyer Ruth Renton, the Employment Rights Act 1996 provides that a woman is entitled to all her terms and conditions during both the ordinary and additional maternity leave periods (OML and AML), apart from remuneration, as though she was at work.

Under the Working Time Regulations 1998 (as amended) all full-time workers are entitled to a minimum of 5.6 weeks paid annual leave. Employees are included in the definition of a worker. This minimum 5.6 week entitlement amounts to 28 days. Part-time workers are entitled to the pro-rata equivalent. Public/bank holidays can be included in or excluded from this statutory entitlement – as decided by an employer.

An employment contract will set out an employee’s holiday entitlement which can be more than the statutory minimum. If the contract provides for less than the statutory minimum then statute overrides the contract. If the contract allows for paid public holidays then these days should be part of holiday entitlement and will accrue during maternity leave.

If throughout your employment you have been paid for public holidays, there is a strong argument that you have a contractual entitlement to paid public holidays when the office is closed on the basis that your employer has created a “custom and practice” that it will pay its employees during each public holiday when its office is closed. This “custom and practice” has changed your contract and given you a contractual entitlement to be paid for public holidays.

An employer may try to argue that employees on maternity or long-term sick leave are not paid for public holidays and that the payment related to that day only and you could not use that day instead as extra holiday to be used at a different time. The obligation to give a woman substitute leave for a contractual entitlement to public holidays that she was unable to take during her maternity leave was reinforced by the European Court of Justice (“ECJ”) decision in Gomez in 2004. This case concerned a fixed holiday period that fell during Ms Gomez’s maternity leave. The ECJ held that a woman must be able to take her annual leave at a time outside her maternity leave. Bank/Public holidays are effectively a fixed day’s leave and it is believed that this principle should therefore be applied in such cases.

*Linked article: Holiday rights for part-timers



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