Why some employers must provide extra holiday in 2018
As a result of the way in which the Easter bank holidays fall in 2018 and 2019, some employers will breach their employees' annual leave rights unless they furnish them with an extra day's annual leave.
Which employers are affected?
The wording in some employees' contracts may result in an unanticipated shortfall in their holiday entitlement, as a result of variations in Easter dates.
The issue will affect employers that operate an annual leave year that runs from 1 April to 31 March, and that set out their employees' paid annual leave entitlement using wording along the lines of "20 days' holiday plus bank holidays".
What is the statutory annual leave entitlement?
Under working time rules, employees are entitled to a minimum of 5.6 weeks' annual leave.
This equates to 28 days' leave per year for employees working a five-day week. The 28 days can include bank holidays, of which there are usually eight per year.
Why are the Easter bank holidays in 2018 and 2019 problematic?
The way in which the 2018 Easter break falls means that, in England and Wales, the Easter bank holidays will straddle March and April.
Bank holidays in April 2018 to March 2019 holiday year
Monday 2 April
Monday 7 May
Monday 28 May
Monday 27 August
Tuesday 25 December
Wednesday 26 December
Tuesday 1 January
These are the England and Wales bank holidays. Some Scotland and Northern Ireland dates differ.
In 2018, Good Friday is on 30 March and Easter Monday is on 2 April. The following year, Good Friday is on 19 April 2019, while Easter Monday is on 22 April 2019.
For a holiday year running 1 April 2018 to 31 March 2019, employees would appear to lose out.
This is because there is no Good Friday bank holiday within a holiday year running from 1 April 2018 to 31 March 2019, meaning that they will be entitled under their contract to just 27 days' leave.
What employment laws could be broken?
Giving employees who work a five-day week fewer than 28 days' annual leave is a breach of the Working Time Regulations 1998, regardless of the number of bank holidays in a particular holiday year.
Failure to honour a contractual clause providing for "20 days' holiday plus bank holidays" would also result in an employer being in breach of contract.
What should employers do?
The 28-day entitlement is a statutory minimum and the employer cannot negotiate out of it, other than by an agreement with the workforce to carry forward up to eight days' holiday into the following leave year.
Employers in this position must top up employees' holiday entitlement for the leave year running 1 April 2018 to 31 March 2019, to ensure that employees retain their 28-day statutory entitlement.
Will this situation occur again?
In 2024, the Easter weekend will again straddle March and April. Good Friday is on 31 March and Easter Monday is on 1 April.
Is there a permanent solution?
Employers could negotiate with their employees to agree a variation to the terms of contracts of employment.
Annual leave contract clauses could be amended to state that employees are entitled to 28 days' annual leave and that this includes bank holidays.