Marks & Spencer, Edinburgh Woollen Mills and Dorchester NHS Trust have been named and shamed for refusing to give staff paid leave on both days of the Queen’s Diamond Jubilee weekend at the start of June.
The TUC criticised all three organisations for requiring personnel to work on Tuesday 5 June, the final day of the four-day bank holiday weekend – although M&S has promised to pay workers overtime.
The union umbrella body contrasted the situation with that at Morrisons and Sainsburys, where employees are covered by union-negotiated agreements and will receive an extra day’s paid leave if they choose not to work that Tuesday.
It also called on all employers to give workers fully paid leave on Monday 4 and Tuesday 5 June and recommended that people who had no choice but to work over the weekend such as emergency services staff should be paid an extra day’s leave on top of their contracted overtime pay.
TUC general secretary Brendan Barber said: “The annoyance and ill-will that will be caused by forcing staff to work while everyone else is out having a nice time will far outweigh any benefits from one extra day in the office. There is still time for employers to do the right thing and give staff a day’s paid leave on Tuesday 5 June.”
But according to Susan Evans, a partner at law firm, Lester Aldridge LLP, the issue of whether staff are entitled to an extra day off over the bank holiday weekend – and if so, whether they should be paid or not – isn’t quite as straight forward as it might appear.
1. Are employees entitled to the day off?
The Working Time Regulations 1998 state that all workers have the right to at least 5.6 weeks’ paid annual leave per year, up to a maximum of 28 days, she explains, although they may have been offered a more generous holiday entitlement under the terms of their employment contract.
But there is no specific statutory right for employees to have the day off (paid or otherwise) on a bank or public holiday and, therefore, whether or not they are entitled to an extra day’s leave depends largely on what it says in their employment contract.
As an example, a contract may state that a staff member is entitled to 20 days’ paid leave plus all public and bank holidays in England and Wales. If this is the case, it is very likely that they will be entitled to paid leave for this extra bank holiday.
On the other hand, a contract which states that an employee is entitled to 20 days’ paid leave plus the usual public and bank holidays may not be entitled to the extra day.
Similarly, if their holiday entitlement stipulates their entitlement to 28 days’ paid leave including bank and public holidays, the employee would not automatically be able to take it as an extra day’s leave. In those situations, they would need to book the day off as part of their holiday entitlement.
As an employer you do also have some discretion, however. Even if your employment contracts do not provide for the additional day off, you may decide to grant it as an additional day’s leave to everyone.
The morale boost that is generated by this additional benefit may justify the inevitable cost. You should also think back to how you dealt with the additional day’s leave in 2011 for the Royal Wedding as there is an argument for being consistent in your approach.
2. Are staff members entitled to enhanced pay?
It is not unusual to see a contract that provides for double, or even triple, pay for employees who work during bank or public holidays. This situation can often act as a great incentive for them to undertake such work.
However, there is no statutory entitlement to enhanced pay so whether you need to pay it or not also comes down to the wording of employment contracts and any ‘custom and practices’ that have developed.
3. I’ve been inundated with requests to take the rest of the week off – can I refuse?
Employers may find that several staff members request days off at the same time. Although you are entitled to decide when they take their annual leave and control how many people can be off at the same time, you need to approach decision-making around multiple requests for leave on the same day with caution.
Employees can become very disaffected if they believe that they have not been treated fairly and consistently, particularly if their request for leave is refused when another colleague’s request is granted.
Therefore, you will need to consider the needs of the business and be mindful of ensuring that you have sufficient cover during this period –it may be best to simply allocate holiday on a ‘first come first serve’ basis in order to avoid disputes, for example.
4. Are part-time workers entitled to an extra day’s holiday?
This is a confusing area and can often cause problems. Your part-time workers are entitled to the same holidays as your full-time workers on a pro-rata basis. Not to allow this would mean discriminating against them as part-time workers.
This means that your approach should be consistent across your entire workforce. Therefore, you should take the extra day into account when considering each individual’s holiday entitlement, even if the bank or public holiday does not fall on a usual work day for them.
5. What should I do next?
- Ensure you are prepared – check the wording of holiday entitlement provisions in employees’ contracts
- Provide the same information to all staff – Will you give them an additional days leave? Will you pay them for it?
- Ensure everyone is aware of how you intend to deal with holiday requests
- Seek legal advice if you are unsure what your intended position should be in relation to holiday entitlement and holiday requests.
