Introduction
Who will get the day off?
Part-time employees
Teachers and parents
What about pay?
What can employers do?
The usual late May bank holiday has been moved forward to 3 June in 2022, and an additional one-off bank holiday has been created for 4 June 2022.
Since the announcement of the extra bank holiday, which celebrates the Queen's Platinum Jubilee, employees have been planning how to spend their bonus extra-long weekend. However, the legal position is not that straightforward. Some employees may find that they will not be getting an extra day off at all.
Contrary to the former culture secretary's comment that "we can all look forward to a special four-day Jubilee weekend", whether an employee is actually entitled to the extra bank holiday is dependent on the wording of their terms and conditions of employment and the timing of work patterns.
Technically, employees will only be entitled to the extra bank holiday if their employment contract says that they are entitled to X days of annual leave in addition to bank holidays.
If their employment contract says that they are entitled to X days of annual leave inclusive of bank holidays or X days of annual leave in addition to the usual eight UK bank holidays (in England and Wales) it will be at the employer's discretion whether to give employees the additional bank holiday.
The position is the same for part-time staff – whether they are entitled to the day off (or an alternative day) is dependent on the wording of their contract. For part-time staff who would not normally be working on the bank holiday because it is not one of their working days, they would miss out on the benefit if the day off is given only to those employees who do normally work on that day. In order to avoid the risk of a claim for less favourable treatment of part time workers, their holiday entitlement will need to be adjusted accordingly on a pro rata basis.
It has been confirmed that teachers and other staff in schools in England will get an extra day off during the academic year 2021/2022 in "The School Teachers' Pay and Conditions Document" (with similar provisions applying across the United Kingdom). Therefore, schools will need to ensure that all staff (including term-time and part-time staff) receive the benefit of the additional bank holiday, whether it falls in term time or half term.
The Jubilee bank holiday falls during half term for most schools, which means that those schools will have to choose a different day to close in order to ensure that all staff get the benefit of the additional day off.
As most schools will have to elect to take a substitute day off outside of half term, working parents will either need to take an extra day off or find childcare cover. If those parents are not given the extra bank holiday by their employer when it falls and have to use another day of their holiday to cover the childcare, they may feel doubly disadvantaged.
Some employees, such as shift workers, will not necessarily expect to get the extra day as a holiday but they might expect to be paid a "bank holiday" rate of pay. Again, whether employers have to pay this will depend on the precise wording of the employees' contracts of employment. If the contract provides for a higher rate of pay for any bank holidays worked, this would include the additional bank holiday.
It is important to consider employee relations in this scenario. There are reputational risks associated with having disgruntled employees who feel they are being treated unfairly.
If employees usually have bank holidays off (or are paid a "bank holiday" rate), they are likely to expect the same to apply on 4 June 2022. Even if they are not legally entitled to it in accordance with their contract, not giving the extra day off is likely to be badly received.
It is worth considering what position the business took on 29 April 2011 for the extra bank holiday to celebrate the royal wedding of Prince William and Kate Middleton. Longer-serving employees are likely to remember and expect the employer's policy to be the same this time.
In Northern Ireland, the position is the same as outlined above, although there are 10 usual bank holidays, with a range of practice applying in relation to these holidays depending partly on the industry sector and partly on geography. Northern Irish employers may wish to seek advice on potential religious or political opinion discrimination issues associated with giving, or not giving, the Jubilee bank holiday.
We anticipate that a lot of businesses may decide to give employees the extra day off regardless of the technical legal position, particularly given the wider context. The employment market is reportedly buoyant at present with a "great resignation" forecasted. Employers who are keen to retain talent are focusing on ensuring that employees feel fairly treated and remunerated. Not observing the extra holiday that is being reported in the press as an extra-long weekend for "everyone" will not fit well with these types of retention policies.
For further information on this topic please contact Amy Cooper or Adam Brett at Lewis Silkin by telephone (+44 20 7074 8000) or email ([email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.