Legal advice: Additional bank holidays, employment law, and annual leave

In November 2021, the Government announced that the UK would enjoy an additional bank holiday to celebrate the Queen’s Platinum Jubilee.

The additional bank holiday will take place on Friday 3 June 2022, and – as the late May bank holiday has been moved to Thursday 2 June 2022, many in the UK will enjoy a four day weekend.

On 26 April 2022, the BBC reported that the CBI, UK Hospitality and a variety of well-known brands are calling for the additional bank holiday to be made permanent.

In a similar vein, in the run-up to the 2019 General Election, the Labour Party announced that if elected, they would introduce a further four bank holidays a year (St David’s Day – 1 March, St Patrick’s Day – 17 March), St George’s Day 23 April and St Andrew’s Day – 20 November).

Employers and employees alike may wonder whether all employees are entitled to any additional bank holiday(s) – whether permanent or one-off.

The answer: not necessarily…

The law on annual leave is contained in the Working Time Regulations 1998. Regulations 13 and 13A of the WTR provide that Workers (a wider category of people than Employees) are entitled to 5.6 weeks of annual leave each year.

For people that work five days a week, this means that they are entitled to 28 days of annual leave each year.

The law does not entitle employees or workers to take leave on bank holidays in addition to their WTR entitlement.  Consequently, the question of whether an individual is entitled to leave from work on a bank holiday depends upon what their contract says.

Many contracts of employment provide that individuals are entitled to 20 days of holiday plus bank holidays.  In these circumstances, the individuals will be entitled to benefit from any additional bank holiday that the Government announce.  If the contract of employment has any further description around bank holidays then this will affect individuals’ entitlements.

So – if the contract says the holiday entitlement is “20 days plus the usual eight bank holidays” individuals working under that contract will not be entitled to the additional bank holiday.

Similarly, if the contract does not mention bank holidays (for example providing for 28 days of holiday a year) then individuals working under that contract will not be entitled to the additional bank holiday.

Prudent employers will often draft their contracts of employment in such a way that bank holidays are not part of the contractual entitlement of employees or workers.

There are several good reasons for doing so:

• It avoids problems when Employers have people that work part-time and avoids the need for cumbersome pro-rata exercise.
• It keeps the decision about bank holidays in the hands of the Employer. The only way that individuals working under such a contract of employment will be entitled to additional bank holiday(s) is if the government specifically legislates to this effect.

Of course, any employer that has a contract of employment that does not allow employees the benefit of additional bank holidays would be wise to consider the position carefully before making any decisions.

They should balance the cost of allowing an additional bank holiday against the damage to goodwill amongst members of staff in refusing it.  This writer, in particular, would feel unhappy to have to work on Friday 3 June 2022…

by Andrew Buckley
Partner, Employment
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