In this guide, Senior Employment Lawyer, Matthew Ainscough from law firm Bell & Buxton incorporating Ironmonger Curtis explains how employers can handle the issue of calculating bank holidays for part time workers.
First a bit of background. There are currently eight bank holidays in England and Wales (Scotland and Northern Ireland have some additional locally declared holidays). There are some technical differences between “bank” and “public” holidays, but for the purpose of this post I will refer to them as bank holidays.
Related article: Bank holiday working rules: guide for employers
It is worth remembering that there is still no statutory right to time off on any bank holiday. Therefore, whether a worker can be required to work on a bank holiday will depend on what has been agreed between the worker and their employer. In many industries, working on bank holidays is a necessity (even on Christmas day!)
According to domestic law, employees and workers are entitled to 28 days of annual leave, which can (and often does) include bank holidays. So far, so straightforward. However, bank holidays can cause some tricky issues when dealing with part time workers' holiday entitlement.
Unfortunately, the position of part time workers in relation to bank holidays is not very clear.
As previously mentioned, there is no statutory right to paid bank holidays (or time off in lieu of them), but many employers grant bank holidays in addition to their employees’ statutory or contractual holiday entitlement. However, some employers only give this benefit if the holiday in question falls on a day on which the worker would otherwise normally be at work. This can result in unfairness to part time workers who happen not to work on Mondays, which tends to be when most bank holidays fall.
The Working Time Regulations 1998 do not deal with the question of whether an employer should give time off in lieu for missed bank holidays. However, employers who only give part time workers paid time off for public and bank holidays that fall on days on which they would normally work may be in breach of another piece of legislation, the Part Time Worker Regulations 2000, which protects part time workers from being treated less favourably than their full time colleagues. It is easy to see how it could be argued that some part time workers (generally those who do not normally work on Mondays, or those whose working days are variable) will be treated less favourably than comparable full-time workers when it comes to bank holidays.
The simplest way to resolve this is to give part time workers a pro rata entitlement to public holidays, regardless of whether they normally work on days on which those holidays fall, and to monitor the days on which they work.
Let’s look at an example to see how to make taking bank holidays fairer for part time workers. For example, say Mandeep works Tuesdays and Wednesdays, whereas Rebecca, another part timer for the same organisation, works Mondays and Fridays.
The company they work for closes on bank holidays. As someone working on Mondays and Fridays, Rebecca would qualify to take most bank holidays automatically. On the other hand, Mandeep may lose out on taking bank holidays as someone who does not work on these days. Unless the company does something to even things up, Rebecca will be able to take advantage of more bank holidays than Mandeep.
To deal with this, the company needs to go through several steps. Firstly, bank holidays will need to be included in the overall holiday entitlement. So, both Rebecca and Mandeep will have 28 days’ annual leave entitlement (including the 8 bank/public holidays available in England and Wales). As they both work 2 days a week, they both have a 40% “part-time percentage”, equating to 11.2 days’ annual leave (which would normally be rounded up to 11.5 days’ leave).
The table below visualises the days on which the employees would normally work the bank holiday:
|
Bank holidays 2020 |
Mandeep |
Rebecca |
|
01/01/2020 (Wednesday) |
X |
- |
|
10/04/2020 (Friday) |
- |
X |
|
13/04/2020 (Monday) |
- |
X |
|
08/05/2020 (Friday) |
- |
X |
|
25/05/2020 (Monday) |
- |
X |
|
31/08/2020 (Monday) |
- |
X |
|
25/12/2020 (Friday) |
- |
X |
|
28/12/2020 (Monday) |
- |
X |
So, for Mandeep, the company would book the 1st January as a day’s holiday, leaving him a total of 10.5 remaining to take when he wants. Rebecca, on the other hand, will have seven days’ holiday booked “in advance”, so she will only have 4.5 days’ holiday left to take.
This process is a little time consuming, as it involves the company manually booking the bank holidays that such employees would otherwise work at the beginning of each holiday year. However, it works and is probably the best way of ensuring fairness between part time workers.
There are some cases which indicate that employees do not have to pro rate bank holidays for part time employees, but, whilst the case law is not entirely clear, most employers will find it both legally safer and fairer to give employees a pro-rata entitlement of the bank holidays.