The Queen's Funeral - How to Handle the Bank Holiday

King Charles has approved an order that the Queen’s funeral on Monday, 19 September 2022 will be a one-off national bank holiday. A government announcement confirms that schools should close for the day, allowing “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.

Strictly speaking there is no statutory entitlement to time off on bank holidays, paid or otherwise. With schools closed on Monday the issue is whether staff are entitled to be paid for the day off on Monday and if so, how much this should be. This question turns on interpretating the contractual terms between the parties with a sincere nod to the rights of part-time workers and those with irregular hours.

What does the holiday clause in the contract say?

1. A set number of days’ holiday allowance plus bank and public holidays – staff are entitled to be paid for this additional day’s leave on top of their usual paid annual leave entitlement.
2. A set number of days’ holiday allowance (subject to the statutory minimum of 5.6 weeks or 28 days) including bank and public holidays – the bank holiday will count as part of the current leave year’s holiday entitlement with no right to an additional day’s paid leave.
3. A set number of days’ holiday allowance plus “the usual bank holidays” or an express statement of the actual public holiday dates -  Monday’s bank holiday is both extra to the norm and unexpected, and therefore falls outside this category. Whilst this means that granting the day off   could allow for the option of unpaid leave, it is worth remembering that this time off obligatory for staff and as such more generous approach may be   to pay for the additional day’s leave . However, this bank holiday will not count as part of the current leave year’s holiday entitlement and should not   be deducted as part of a worker’s annual entitlement.

The interpretation of the contractual provisions in contracts of employment is key as getting it wrong could lead to an employer being exposed to an unlawful deduction of wages claim. The best option is likely to be to give the extra paid holiday for the Queen’s funeral as a one-off.

What about staff who don’t normally work on a Monday?

• Staff working on days of the week other than Mondays are deemed part-time workers. The Part Time Workers (PTW) Regulations 2000 ensure that part-time workers are not treated less favourably (including in relation to contractual benefits) than a comparable full-time worker on the grounds of their part-time status unless such treatment can be objectively justified. In determining whether a worker has been treated less favourably than a full-time comparator, the "pro rata principle" must be applied unless it is inappropriate (regulation 5(3)).

• Let’s take the position as being that set out in point 1 above – Monday will be an additional day’s holiday paid at normal rate for staff working full-time. Obviously, staff not working Mondays wouldn’t appear to benefit. The simplest (and usual) way to achieve equality is to give the disadvantaged part-time workers a pro-rated entitlement to all public holidays, regardless of whether they normally work on days on which those holidays fall. This approach was recommended by BEIS guidance on part-time worker

• For example:  A member of staff works Tuesday to Friday inclusive = 80% of the days worked by a full-time colleague

• Applying the pro rata principle, the part-time worker is entitled to receive paid time off in respect of 80% of the bank holidays. The additional bank holiday on Monday equates to a further 0.8 day’s paid leave. However, schools may opt to pay a full day’s pay to part-time workers (who do not normally work on Mondays). Treating a part-time worker more favourably than everyone else is lawful under the PTW Regulations as a part-time worker cannot be used as a comparator under the PTW Regs.

And finally, how about staff who work irregular hours for only part of the year?

• The words “Harpur v Brazel” will no doubt provoke questions as to the possible implications that an additional paid one-off bank holiday may have for workers such as Mrs Brazel working on a zero hours contract or those working irregular hours for some, but not all, weeks of the working year.

• Two things to focus on are: the wording of the specific contract in question and the formula for calculating paid annual leave entitlement set in stone by the Supreme Court in Harpur Trust v Brazel [2022]: 5.6 weeks is the fixed entitlement under the Working Time Regulations 1998. The variable is the amount of average pay for each week, determined over a 52-week reference period (including only those weeks when remuneration is payable; i.e not weeks where no work is undertaken).

• For staff working on zero hours contracts, or those working irregular hours, Monday’s bank holiday will be a non-working day irrespective of whether the day was initially rostered. When calculating average pay for the 5.6 weeks of paid annual leave only actual hours worked and those weeks when remuneration is payable (i.e weeks when work is undertaken) are taken into consideration. As such, it is unlikely that the Harpur v Brazel effect would increase any entitlement to paid annual leave for these staff due to Monday’s bank holiday.