Let’s be fair, additional bank holidays don’t crop up too frequently.

However, during 2022, we had one additional bank holiday for Her Majesty Queen Elizabeth II’s Platinum Jubilee in June and, tragically, an unexpected additional bank holiday given for her State Funeral in September.

Whilst the second of these could not be foreseen, it meant that we had ten bank holidays in one year, rather than the usual eight, which led employers to ask “Should we give time off for these?” and “If we must, should they be paid?”

The First Part of the Answer

As a worker’s minimum statutory entitlement is to 5.6 weeks’ holiday, split into 20 days of “normal” holiday and eight days of public holidays (perhaps better known as bank holidays), the first part of the answer is to look very carefully at the wording used in your staff contracts, as this will dictate your actions and the risk to your business.

1.      Your contracts might provide that your staff are entitled to take “all public holidays”, in which case they are entitled to all bank holidays, regardless of how many there are. Your contracts might also specify whether these are paid or unpaid but, if there is nothing specific to suggest which, then the assumption may be that they are to be paid.

2.      Alternatively, your contracts might specify that a worker is entitled to take “the usual eight public holidays”, which leaves you with a choice about whether to allow your staff to take additional paid time off for an unexpected bank holiday or not.

3.      Additionally, you might work in an industry where your staff are expected to work on bank holidays, which again leaves you with an open choice.

Tied into this, in all three scenarios and looking more broadly at bank holidays in general, there is the question of where your staff are actually based. 

With the shift away from working in the traditional workplace in certain industries, even to staff being based in other countries across the world, now might be the time to specify precisely which public holidays are to apply. This primarily comes down to which country’s laws you would like to apply to the contract, although the question of whether you allow your staff to benefit from another country’s public holidays is something that you should take specific advice on.

The Second Part of the Answer

The second part of the answer is that it is also important to consider the cultural impact of a solution, alongside the impact to your business. For instance:-

·        Your staff might be disgruntled if you do not provide them with an additional bank holiday if it arises, particularly if other businesses in your industry have accommodated it. Likewise, if you give them the bank holiday as time off, but do not pay them for it, you could be risking workplace grievances and possible tribunal claims, which is a significant time and money cost for your business as you attempt to resolve the issue.

·        On the flip side, it wasn’t your decision to put another bank holiday in the diary and the public guidance may very well put the responsibility firmly on your shoulders. In these circumstances, it might seem best to take a measured approach, focusing on what is reasonable in the circumstances. For instance, many hospitality venues closed for the State Funeral, but only for the duration of the ceremonies, allowing their staff to view them if they wished to. These venues essentially sacrificed their morning and lunchtime trade, but later brought their staff in to serve their evening trade, after the official ceremonies had ended. Whilst this solution might not work for all additional bank holidays, it does give an indication of the practical thinking involved in helping a business to achieve a fair compromise between accommodating its staff and continuing to function as best it can in the circumstances.

Whilst the two additional bank holidays this year had focused on the reign of Her Majesty Queen Elizabeth II, indicating that they can arise for commemorating events of national significance and respecting the passing of people of national significance, this does not rule out their application to other, similar circumstances, or even the creation of new bank holidays in the future. After all, never say never…

Next Step

Having staff contracts that are unprepared for these possibilities, even in a general sense, can create significant disruption and confusion in your business.  

If you are concerned that your staff contracts could be landing you in trouble, contact us to learn more about our Fixed Fee Staff Contract Review.