04.02.2022
As part of the Queen’s Platinum Jubilee celebrations in 2022, there will be a one-off additional bank holiday, resulting in 9 days' public holiday in England and Wales in 2022, as opposed to the usual 8. The late May bank holiday will be moved to Thursday 2 June and will be followed by the extra bank holiday on Friday 3 June 2022 (the Platinum Jubilee Bank Holiday), creating a four-day long ‘celebratory weekend’. Below, we consider the implications of the Platinum Jubilee Bank Holiday for employers.
Are employees entitled to the Platinum Jubilee Bank Holiday?
Entitlement to the Platinum Jubilee Bank Holiday is governed by the employee’s contract and by the Working Time Regulations 1998 (‘WTR’). There is no overriding statutory obligation on an employer to allow their workforce time off just because a day has been nominated as a public holiday. Accordingly, employees are not necessarily entitled to the Platinum Jubilee Bank Holiday simply because the Government has announced it.
Terms of the contract
Whether or not an employee is entitled to the extra day will depend on the terms of their contract, whether expressly provided or established as a result of custom and practice.
Contracts often provide that employees are entitled to all statutory and public holidays. For example, the contract may entitle the employee to "25 days’ holiday per year plus public and bank holidays". If this is the case, then your employees will be contractually entitled to the Platinum Jubilee Bank Holiday in 2022 as an additional day of paid leave.
Contracts which explicitly list the public holidays to which the employee is entitled are also not unusual. Given that the Platinum Jubilee Bank Holiday has only recently been announced, it will not be specifically mentioned in the list of public holidays in contracts drafted in this way and, as such, employees will not be contractually entitled to that day as paid holiday, unless you otherwise agree.
Similarly, if the contract states that the employee is entitled to “the eight recognised public holidays”, the implication is that the employee is not contractually entitled to what will be a ninth public holiday.
You may, of course, choose either to give employees the Platinum Jubilee Bank Holiday off as an extra day of paid holiday, or as unpaid leave, or you could follow whatever stance you have taken in relation to previous ‘one off’ bank holidays such as the Royal Wedding bank holiday in 2012, or the Queen’s Golden Jubilee bank holiday in 2011.
Working Time Regulations
The WTR entitle workers (a broader group of individuals than employees) to a statutory minimum of 5.6 weeks' holiday each year. This is equivalent to 28 days for a full-time five-day a week worker and the entitlement is pro-rated for part-time workers.
The WTR do not confer a right to take specific public holidays as holiday and the amount of statutory leave is inclusive of all public holidays. Under the WTR, therefore, the Platinum Jubilee Bank Holiday could be treated as one of the 28 statutory days.
WTR leave is not additional to an employee's contractual entitlement and often contracts of employment or collective agreements contain more generous provisions for holiday entitlement than the WTR. Where a worker has a contractual right to annual leave and a corresponding right under the WTR, the worker may take advantage of whichever right is more favourable – usually the contractual entitlement.
Payment for working on the Bank Holiday
Where you have a right to require an employee to work on the Platinum Jubilee Bank Holiday, payment will be at the employee’s normal rate unless the contract states otherwise (e.g. if it provides a premium rate for working on public holidays).
Part-time workers
The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the ‘PTWR’) will also be relevant to the way in which you deal with the Platinum Jubilee Bank Holiday. The PTWR provide that it is unlawful to treat a part-time worker less favourably than a comparable full-time worker unless the treatment is objectively justified.
Unfortunately, the PTWR do not expressly deal with the issue of public holidays. Some employers grant part-timers a pro-rata entitlement to these holidays regardless of which days they are rostered to work. Others only allow part-timers paid time off if the holiday in question falls on a day on which the employee would otherwise normally be at work. This can result in unfairness to part-time workers who happen not to work on Mondays (when most bank holidays fall).
Although the position of part-time workers in relation to public holidays has never been particularly clear, the courts have emphasised that to be unlawful the less favourable treatment must be solely on grounds of part-time worker status. This may suggest that a claim by a worker employed in a business where there is a policy of only paying for public holidays that are normal working days would fail. This is because the reason for the treatment is that the employee does not normally work on the day on which the public holiday falls, not their part-time status. That said, apportioning public holidays for part-timers on a pro-rata basis is still the safest approach for employers to take.
Importance of advance planning
It might be operationally significant for your business that the Platinum Jubilee Bank Holiday means that there will be three public holidays within a five-week period, with the latter two also coinciding with the May half-term holiday, when many working parents may wish to take time off.
It is therefore best to start considering the implications of the Platinum Jubilee Bank Holiday for your work schedules and employees’ holiday arrangements now. We recommend that you give your staff as much notice as possible as to how you intend to deal with the Platinum Jubilee Bank Holiday.
Proposal for a future ‘Thank Holiday’?
This year’s Platinum Jubilee Bank Holiday is, of course, a one-off event. However, a campaign has been launched today to support the introduction of a new, annual bank holiday starting in 2023. The proposed day would be created in honour of the Queen’s service and would be an annual dedicated day of thanks to all those people who serve the community.
If a new, annual ‘Thank Holiday’ were to be introduced, employers would, of course, need to take a longer-term view of the issues discussed above.
How we can help
Make UK members can access guidance on employees’ holiday entitlements in the HR & Legal Resources section of our website and can speak to their usual adviser if they have any specific queries about the impact of the Platinum Jubilee Bank Holiday, or any other holiday related issues.
We can also provide advice and assistance to non-members on a consultancy basis – if you would like further information on our services, please call us on 0808 168 5874, or email enquiriesmakeuk.org.