The question
One of our employees became a father on 22 December, 2011.
He requested and took his two weeks of paternity leave, starting on the day that the baby was born and ending on 5 January, 2012.
However, during those two weeks, there were three bank holidays. Has he lost these now or is he entitled to take them later in the year? What is the legal situation regarding holidays and paternity leave?
The legal verdict
Esther Smith, a partner at Thomas Eggar
There is no statutory right to be paid or given time off for public holidays and, therefore, any such entitlement must be contained in employees’ contracts of employment (or implied in the contract through custom and practice).
Assuming your staff member’s contract states that he is entitled to bank holidays, the answer to your question depends on whether public holidays form part of his statutory 5.6 weeks’ annual entitlement to holiday or are an additional entitlement.
If public holidays are included in the 5.6 weeks, you will need to give your employee three compensatory days off later in the year to ensure that he gets his full 5.6 weeks off.
The law does not allow any payment in lieu for statutory holiday entitlement (except when employment terminates) and, therefore, you cannot simply pay him for the three days.
It is common practice for employers to allow personnel to take bank holidays off on top of their statutory 5.6 weeks’ entitlement and, if this is the case here, how you proceed will depend on whether this staff member’s contract gives him a right to paid leave or a right to time off.
If your employee is entitled to paid leave for public holidays, you will not need to pay him for the three bank holidays as these do not form part of his statutory minimum holiday entitlement.
This is because during paternity leave, employment contract terms and conditions regarding remuneration are suspended, which includes contractual holiday pay.
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
Martin Brewer, a partner at Mills & Reeve
Essentially, this is a contract question.
Since April 2003, eligible employees have been entitled to take ordinary paternity leave within 56 days of their child’s birth. OPL lasts for either one whole week or two consecutive weeks. The right to OPL was enacted by the Paternity and Adoption Leave Regulations 2002 (SI 2002/2788) (‘PAL Regulations’).
Regulation 12 of the PAL Regulations says that, during paternity leave, an employee is entitled, during the period of leave , to the benefit of all terms and condition of employment that would have applied if he had not been absent, except for pay.
This is confirmed by Government guidance on OPL and pay on the Directgov website. The guidance confirms that employees who are entitled to OPL get all of their normal employment benefits (apart from wages) during OPL. This includes holiday entitlement. In short, holiday entitlement will accrue whilst an employee is on OPL.
So, as I initially pointed out, this is a contract question. The Working Time Regulations give all full-time workers 5.6 weeks annual leave and statutory holidays can be included in that 5.6 weeks.
If you are one of those employers that does so, and one of your employees takes OPL and misses what is in effect a day’s holiday, they must be allowed to take it at some other time (whether before or after the OPL).
If you give 5.6 weeks holiday as well as statutory holidays on top of that and one of your employees takes OPL and misses what is a day’s statutory holiday, they simply lose that day, do not need to be compensated for it and need not be given time in lieu of it.
Martin Brewer is a partner at law firm, Mills & Reeve LLP.
