Unexpected bank holidays: what should employers do?

The government has announced that the day of the funeral of Queen Elizabeth II, Monday 19 September 2022, will be a one-off bank holiday. 

It has also been suggested that the Coronation of King Charles III will be a bank holiday. However, this is yet to be confirmed and may not take place for some time; Queen Elizabeth II’s Coronation did not take place until sixteen months after her accession.

What are employers’ obligations when it comes to unexpected bank holidays?

There are four key points to consider.

1. Contrary to common belief, there is no automatic legal entitlement to time off work on a bank holiday. Schools, businesses, government offices and the Courts will close for the day, but there is no parallel over-arching legal obligation on employers to allow employees a holiday. Under statute, employees are only entitled to 5.6 weeks’ holiday per year, and this can include bank holidays. It is up to employers to specify whether the statutory 5.6 weeks includes or excludes bank holidays.

2. So the next step is for employers to carefully check the wording of their employment contracts to see how leave entitlement operates in the context of public holidays. For example, the contract might allow employees a day’s holiday for ‘all public holidays announced by the government from time to time’, or ‘X number of weeks plus bank holidays’ which would very likely cover the forthcoming bank holiday and any further bank holiday for the Coronation.

However, there would be no entitlement to leave for the unscheduled bank holidays if the contract specifies that only the ‘normal’ scheduled bank holidays are included in an employee’s leave allowance; some contracts will specify the dates of bank holidays that are included.    

3.  If there is no contractual right to leave for the additional bank holiday/ holidays, employers will then need to consider whether to exercise their discretion to grant a day’s leave in any event. Employers may wish to take into account factors such as:

• the impact on their organisation and the extent to which it would be affected by an unscheduled shutdown at short notice
• whether the employer should allow time off for all staff, or whether they need a skeleton staff to attend work (and allow a day off in lieu for those employees required to work)
• whether you allowed additional leave for the Jubilee bank holidays earlier this year
• the extent to which employees feel personally affected by events. That said, it seems very unlikely that belief in the monarchy as an institution would amount to a protected ‘philosophical belief’ under equalities legislation (GB only), so the risk of discrimination claims is likely to be low.

4. Finally, bear in mind that an unreasonable refusal to allow employees to take a day’s leave for unscheduled public holidays may, in some circumstances, amount to a breach of the implied term to maintain employees’ trust and confidence. This can entitle employees to resign and claim constructive unfair dismissal, so please do speak to your usual TLT contact if you are unsure.

Contributor: Sarah Maddock

For further news and updates on employment law developments as they happen, please follow our specialist Employment Law Twitter Feed @TLT_Employment and subscribe to our Employment Law Focus podcast – the latest episode, on ‘gender equality: a work in progress’ is available here: Employment Law Focus on Apple Podcasts.