Employers will be aware that all workers are entitled to a statutory minimum of 5.6 weeks’ paid holiday per year (subject to a maximum of 28 days).
Public or bank holidays have no special status in employment law and it is for employers to decide whether workers are required to work on public holidays and/or whether they are required to take holiday on public holidays. An employer’s decision on these questions is usually set out in a worker’s contract or terms and conditions of employment.
If you employ part-time workers at your business, care should be taken to avoid fallings into a common “bank holiday trap” that inadvertently may treat part-time workers less favourably and exposes the employer to the risk of claims.
Take for example three employees who do the same job and have otherwise identical terms of employment save in respect that one is full-time and the others are part-time. The first, Employee A, works full-time on Mondays to Fridays and their contract of employment entitles them to 20 days paid holiday plus the public holidays. Employee B works part-time on Tuesdays to Fridays and their contract of employment entitles them to 16 days (pro-rated from the full-time equivalent of 20 days) plus any public holidays that fall on their normal working days. Employee C works part-time on Mondays to Thursdays and their contract of employment entitles them to 16 days (pro-rated from the full-time equivalent of 20 days) plus any public holidays that fall on their normal working days.
As the employer has a holiday year aligned with the calendar year, the holiday entitlements of Employee A, B and C per their contractual terms for 2023 are as follows:
- Employee A: 29 days (as there are nine public holidays this year); and
- Employee B: 18 days (as of the nine public holidays, seven are on Mondays when Employee A does not work).
- Employee C: 26 days (as of the nine public holidays, only Good Friday would not be a normal working day for this employee).
Two issues arise from this in relation to Employee B. The first is that they have arguably been treated less favourably by their employer because they are part-time by receiving proportionally less holiday than the comparable full-time employee, Employee A. In addition, Employee B’s holiday entitlement of 18 days is below the statutory minimum of 5.6 weeks (22.5 days if you round up to the nearest half-day) and therefore in breach of the Working Time Regulations.
There is also the large difference in entitlement between employees A and B. Whilst this is not because of part-time status, as they are both part-time, it is arguably an unfair difference in entitlement.
To avoid falling into this trap, the simplest solution is for employers to ensure that when calculating a pro-rated holiday entitlement for part-time workers that the total holiday entitlement of the comparable full-time employee is pro-rated and not just the proportion of the total that does not relate to public holidays (as public holidays have no special status).
Whilst it may be the case that a part-time employee who has Monday as a normal working day, like Employee B, will be aggrieved that seven days of their 2023 holiday entitlement will be “used up” by public holidays and a part-time worker like Employee C has more “choice” on when their 2023 holiday is taken, this is in our view a preferable situation for employers (as the total paid holiday entitlement received by Employees B and C would be the same). This potential solution also aligns with the main purpose of the Working Time Regulations which is to ensure that workers have the right to be paid for not attending work for at least 5.6 weeks per year (the law is not concerned about when holiday is taken during the year).
For our article on the common question of whether workers are legally entitled to paid holiday the ninth public holiday in 2023 click here A Coronation Bank Holiday? | Actons Solicitors
Posted on April 21, 2023