In honour of the upcoming Coronation of King Charles III, an additional bank holiday will be taking place on Monday 8 May. This is in addition to the usual two May bank holidays (1 May and 29 May 2023). This will result in 9 bank holidays taking place in England and Wales during 2023, rather than the usual 8 bank holidays in a standard year.

We anticipate that, as we look toward May, employers will start to receive enquiries about this additional bank holiday. To pre-empt these queries, employers should therefore consider now whether their employees will be entitled to an additional paid day of leave on 8 May 2023.

The starting point for employers is to review what is set out within the 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 this additional 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:

• 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 8 May 2023, alongside all other bank holidays occurring in 2023, 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.

• 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 an employee would not be entitled to automatically take the 9th, and additional, bank holiday in 2023.

As this wording does not name each of the 8 bank holidays, it would be open to an employer to allow employees to take 8 May 2023 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.

• 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 8 May 2023) 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 2023 they have 19 days holiday to take at other times, rather than the usual 20 days.

• 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 holiday in 2023 is not usual and has 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.

Can you force an employee to take the Coronation 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).

However, we would recommend that notice is given to staff as soon as possible if this is the intention. This early communication will help from an employee relations perspective to ensure staff understand how the day impacts on their annual entitlement. This is similar to what many employers do over Christmas shutdown periods, where clear communication in advance is vital.

Can an employer refuse an employee’s request to take the additional Coronation 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).

What other considerations should employers be aware of?

In practice, irrespective of the contractual position, some employers may opt to provide the day to employees as a discretionary additional day of leave. Many employers took this approach toward the additional bank holidays in 2022 and employees that are not usually required to work on bank holidays are likely to presume that they will be entitled to the additional day off. Accordingly, there may be benefits to offering the additional day from an employee relations and morale perspective. This decision will, of course, depend on the nature of the business and the relevant commercial considerations. We would encourage employers to apply their mind to their approach now to ensure clear communication over coming weeks.

If you have queries either relating to the content of this blog or your contracts of employment, please contact a member of the Employment team.