It has been announced that, Monday 19 September, the date of Her Majesty Queen Elizabeth II’s State Funeral, will be a national bank holiday. This will allow individuals, businesses and other organisations to pay their respects to Her Majesty and commemorate her reign, while marking the final day of the period of national mourning.

Bank holiday wording in employment contracts

From an employment law perspective, employers will therefore need to consider the implications of the bank holiday for their staff. In terms of whether staff are entitled to the day off, this depends on what is set out within their contract of employment. Contrary to common misconceptions, an employee in the UK does not have an automatic right to paid time off on a bank or public holiday, or days off in lieu of public holidays. The Working Time Regulations do not make specific provision for bank and public holidays, and simply specify that a worker’s holiday entitlement is 5.6 weeks per year. 5.6 weeks, for a full-time employee, is equivalent to 4 weeks (or 20 days) plus the usual 8 bank and public holidays. Whether or not employees are entitled to be paid for on the bank holiday will specifically depend on what is written into their contract of employment.

What does the employment contract say?

We have set out below some common examples of wording found in employment contracts and what this means for employers/employees:

1. If the employment contract states that the employee is entitled to “[X] days holiday per annum plus all bank holidays”

In this situation the contract gives the employee a fixed entitlement to holiday plus all bank holidays. In this case, the employee will have a contractual entitlement to have 19 September 2022, alongside all other bank holidays occurring in 2022, as paid time off. This is because the above wording is not limited to the usual 8 bank holidays that occur in a normal year. It would capture all bank holidays in any given year, however many there may be.

2. If the employment contract states that the employee is entitled to “[X] days holiday per annum plus 8 bank holidays”
   In this scenario, the contractual wording is clear that the employee is only entitled to 8 bank holidays per year in addition to their fixed leave entitlement. This means that, similarly to the Queen’s jubilee on 3 June 2022, an employee would not be entitled to automatically take the additional bank holiday in 2022.

As this wording does not name each of the 8 bank holidays, it would be open to an employer to allow employees to take 19 September 2022 as one of the paid bank holidays. However, the employer should make it clear to employees that they would then lose their entitlement to another bank holiday in the year.

3. If the employment contract states that the employee is entitled to “[X] days holiday per annum”

In this example, the employment contract itself sets out a fixed overall holiday entitlement per annum. It does not differentiate between bank holidays and ordinary annual leave. In practice, this means that the employee can request to take any bank holiday (including the 19 September 2022) as annual leave as long as they do not exceed their annual entitlement. The employee would not be contractually entitled to the additional bank holiday on top of their overall entitlement.

Therefore, if the clause says that an employee is entitled to 5.6 weeks, or 28 days, holiday per annum, then they would need to take the additional bank holiday from their 28 day entitlement. If they take all bank holidays off, this would mean that for 2022 they have 18 days holiday to take at other times (in light of the jubilee extra bank holiday), rather than the usual 20 days.

4. If the employment contract states that the employee is entitled to “[X] days holiday per annum plus the usual/standard bank holidays”

In this situation, an employer could argue that the word “usual” should only extend to the 8 bank holidays that occur in a standard year. This is because the additional bank holidays in 2022 are not usual and had been designated as a special occasion to celebrate the jubilee. Therefore, we consider that in this situation an employee would not be contractually entitled to the additional bank holiday as well as the other 8 bank holiday days.

What other considerations should employers be aware of?

Irrespective of the contractual position, many employers will opt to provide the day to employees as a discretionary additional day of leave given the exceptional circumstances. The government has stated that the bank holiday will be a unique national moment. The guidance encourages employers to respond sensitively to requests from workers who wish to take time off. On a practical level, schools and nurseries will be closed and some staff may therefore have unforeseen childcare difficulties if they are expected to work. Employees should be flexible in addressing these unique circumstances with staff.

In addition, many employees, particularly those that are not usually required to work on bank holidays, are likely to presume that they will be entitled to the day off. There may be benefits to offering the additional day from an employee relations and morale perspective. Employers will also be mindful of the external impact of their decisions and how they may be viewed by customers or clients. Many large retailers have already announced that they will be closed on 19 September 2022 to enable staff to pay their respects. This decision will, of course, depend on the nature of the business and the relevant commercial considerations.

Can you force an employee to take the bank holiday as part of their annual leave entitlement?

Some employers may require employees to take the additional day out of their usual holiday entitlement. Assuming that the contract allows this, the employer should give notice at least twice the length of the period of leave that the worker is being ordered to take (e.g. 2 days in advance).

It is important that notice is given to staff as soon as possible if this the intention to ensure that staff understand how the day impacts on their annual entitlement.

Can an employer refuse an employee’s request to take the additional bank holiday as annual leave?

An employer is not obliged to accept an employee’s request for annual leave. Where an employee is not contractually entitled to time off on the bank holiday, an employer could serve “counter notice” refusing the request. Any such refusal should ideally be given as soon as possible and, legally, at least as many calendar days before the date on which the leave is due to start as the number of days being refused (e.g. 2 days before a request for the 1 day bank holiday).

If you are unsure about bank holiday entitlement and would like to discuss the wording in your employment contract please contact a member of the Employment team.