With two bank holidays coming up in May, there is often confusion as to whether such holidays are included in a worker’s holiday entitlement. So what is the position?
The right to statutory paid holiday is set out in the Working Time Regulations 1998 (WTR). When the WTR first came in, the basic entitlement was to 4 weeks’ leave in any holiday year, i.e. 20 days for any worker working a 5 day week or more.
This was increased to 5.6 weeks’ leave in 2009, i.e. 28 days for any worker working a 5 day week or more to ensure that workers were not being required to take bank and public holidays as part of their 20 day entitlement.
However, although the additional 8 days reflects the usual number of bank and public holidays in England and Wales, there is no statutory entitlement to take those actual days as holiday.
The WTR allows employers to refuse and/or require leave to be taken on certain days, subject to notice requirements, broadly speaking being twice as much notice prior to the date of the holiday as the length of the holiday.
What about the contractual position?
In many cases, the position on working bank holidays will be set out in the worker’s contract and this is likely to be an effective notice under the WTR as to when leave can or cannot be taken.
With hospitality sector workers it is common for their contract to make clear that they may be required to work on a bank or public holiday if it falls on a normal working day for them. This is lawful under the WTR, provided they receive their minimum entitlement to 5.6 weeks’ paid holiday per holiday year.
If the contract states: “You are entitled to 20 days’ holiday in each holiday year plus the usual bank and public holidays in England and Wales” the worker is entitled to take the bank holidays off, with only 20 days’ holiday to be taken at their discretion. If the employer requires them to work on a bank holiday then they may consider offering “time in lieu” or increased pay for such days to reach agreement.
Otherwise, there is no requirement to offer “time in lieu” or additional pay if the overall entitlement under the WTR is unaffected, i.e. they are still entitled to 5.6 weeks paid leave per year.
Clare Gilroy-Scott is a partner in the employment team at Goodman Derrick LLP, the London law firm. https://www.gdlaw.co.uk