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How to manage bank holidays

Author: Katherine Shaw, Lewis Silkin

Summary

Click on any of the hyperlinks to go to more detailed guidance below.

Introduction

Under the Working Time Regulations 1998 (1998/1833), workers are entitled to 5.6 weeks' paid leave per year. The Regulations implement the Working Time Directive (2003/88/EC), which grants four weeks' leave per year to workers.

The 5.6-week entitlement under the Regulations equates to 28 days' leave per year for an employee who works five days per week. This statutory entitlement is pro rated for part-time employees. The leave entitlement is capped at 28 days per year for workers who work more than five days per week.

There are normally eight bank and public holidays a year in England and Wales and nine in Scotland. The Regulations do not differentiate between bank and public holidays and other days and do not prevent them from being part of the 5.6-week entitlement.

Some employers grant their employees more annual leave than that set by the Working Time Regulations 1998.

No statutory right to take time off on bank and public holidays

Contrary to popular belief, there is no statutory right for employees to take time off on bank and public holidays (other than bank employees who cannot be required to work on bank holidays under the Banking and Financial Dealings Act 1971). This means that (subject to this exception) employers are not obliged to permit workers to take time off on bank and public holidays unless they have contractually agreed to do so.

What are bank and public holidays?

Bank holidays are determined by the Banking and Financial Dealings Act 1971 and by Royal Proclamation. In England and Wales, these are usually: New Year's Day, Easter Monday, the first Monday in May, the last Monday in May, the last Monday in August, Boxing Day (if it is not a Sunday) and 27 December if Christmas Day or Boxing Day falls on a Sunday. Further days may be declared bank holidays by Royal Proclamation. Good Friday and Christmas Day are common law holidays through custom. All of these holidays may be known as "public holidays". Often the term "bank holiday" is used generically to describe any "public holiday".

Notice to take or not take leave

Under the Working Time Regulations 1998, employers can notify workers that they must take leave, or not take leave, on a given day. Unless the contract or a relevant agreement (see Employment law manual > Working time > Holiday and holiday pay > Meaning of "relevant agreement" and "workforce agreement" for more details) provides otherwise, the notice periods for requesting or refusing leave or for employers to require workers to take leave are determined by reg.15 of the Regulations. Workers must give notice that is at least twice the length of the period of leave that they are requesting. Employers can refuse a holiday request by giving notice that is at least as long as the period of leave that they are refusing. Employers can require workers to take leave by giving notice that is at least twice the length of the period of leave that the worker is being ordered to take.

The statutory provisions on holiday notice apply equally to bank and public holidays.

Establishing the contractual entitlement in relation to bank and public holidays

Although workers have no statutory entitlement to take time off specifically on bank and public holidays, they may have a contractual right to do so. Similarly, existing contractual terms may determine whether or not the employer can require workers to work on bank and public holidays and the rate of pay that will apply. Therefore, it is important that employers check whether or not there are relevant contractual provisions:

  • in the written contract of employment or statement of employment particulars;
  • in any agreement between the parties;
  • in any policy (which may be incorporated into the employment contract);
  • in a collective agreement; and/or
  • that are implied because of the way in which the employer has dealt with bank holidays in the past.

Contractual provisions may include references to annual leave or holiday and bank and/or public holidays. Where the contractual entitlement exceeds the statutory entitlement under the Working Time Regulations 1998, the former will take precedence. Where the contractual entitlement is less than the statutory entitlement, the latter will apply.

To establish a worker's contractual rights and obligations in relation to bank and public holidays, employers need to consider a number of factors. These are set out below.

Does the total holiday entitlement include bank and public holidays?

Employers should establish whether the holiday entitlement is expressed to be "in addition to" or "inclusive of" bank and public holidays. This makes a difference because, as mentioned above, workers have a statutory entitlement to only 28 days' holiday per year (based on a five-day week), with no additional time off for bank holidays. However, if the contract states that the worker is entitled to 28 days' annual leave per year, "in addition to" bank and public holidays, he or she will be entitled to take 28 days' holiday per year as well as those extra days. Assuming that there are eight bank or public holidays for the year in question, the worker will be entitled to a total of 36 days' holiday. If the entitlement is to 28 days' holiday "inclusive of" bank and public holidays, the total entitlement will be only 28 days' leave.

If an employer grants annual leave in excess of the statutory minimum, whether it expresses the entitlement to be "in addition to" or "inclusive of" bank and public holidays will determine the overall entitlement, as with the examples above.

How does the contract refer to bank and public holidays?

Contractual terms will usually define bank holidays. Some contracts may refer instead, or in addition, to public holidays. As mentioned above, public holidays are made up of bank holidays determined by the Banking and Financial Dealings Act 1971 and by Royal Proclamation and common law holidays (Good Friday and Christmas Day).

If the contract states that the holiday entitlement is in addition to "bank" holidays, but does not mention "public" holidays, then strictly speaking Good Friday and Christmas Day will not be included, although most employers treat these days in the same way as bank holidays particularly as the term "bank holiday" is often used generically to mean all public holidays.

The "usual eight"

Employers should check whether or not contractual provisions around bank and public holiday refer to the "usual eight" bank and public holidays (or words to this effect) or "all" bank and public holidays. If a clause on holiday entitlement refers to an entitlement to take "all bank and public holidays" (rather than the "usual eight"), the worker will be entitled to time off for additional bank holidays that are proclaimed in a year. However, if the contract states that the worker may take the "usual eight" bank holidays, he or she will not be entitled to additional bank holidays. If the worker wants to take time off on an extra bank holiday, he or she will need to treat this as a normal holiday day and request it in the usual way, unless the employer agrees to give its workers an extra discretionary day's holiday for that year (see Additional bank holidays).

Notice requirements in the contract

As mentioned above (see Notice to take or not take leave), the Working Time Regulations 1998 specify notice requirements for requesting and imposing holiday in relation to the 28-day entitlement. These apply unless the contract or a relevant agreement provides otherwise.

Therefore, employers should check contractual terms to check how much notice they must give employees if they want them to take time off for bank holidays and how much notice they can require employees to give that they wish to take time off.

By spelling out in the contractual terms at the outset that employees must use their holiday entitlement to take leave on all bank and public holidays and making clear the relevant dates, employers can effectively give sufficient notice. They can reinforce this by notifying employees separately about each occasion (for example by email).

Pay rates

Employers should check the payment provisions of the contract to see whether or not a higher rate is payable for work on bank and public holidays and, if it is, its level. Employers should check provisions in the contract setting out the worker's core hours, as these may state whether or not extra work carried out from time to time during public holidays will attract a higher rate of remuneration.

Policies

If the employer has a policy or staff handbook that includes provisions on bank and public holidays, it should check whether or not the policy or staff handbook is contractual (see How to write and amend an employee handbook > Incorporating handbooks into employment contracts for more information).

If the policy is non-contractual and discretionary, the employer is not bound to follow it, although it should always ensure that it has a good reason to depart from it, and ensure that doing so would not be unfair. If the policy is incorporated into the contract, terms in it will have contractual effect.

However, policies are usually non-contractual. Therefore, while the contract is likely to specify the worker's entitlement to holiday, the policy should deal with the process of taking the holiday, such as to whom holiday requests should be addressed and the way in which the employer will deal with competing leave requests.

Collective agreements

In the interests of good industrial relations, it is important that employers comply with provisions in a collective agreement. This is particularly the case if the collective agreement is legally enforceable by the union, or by workers because it is incorporated into their contracts (in which case they would have grounds to argue that their contracts have been breached if the terms of the collective agreement are breached). Therefore, employers should check whether or not provisions concerning the way bank and public holidays are managed are included in a collective agreement.

Implied terms

Employers should review how they have dealt with public holidays in previous years and consider whether or not an entitlement around bank holidays may have become implied into the contract through custom and practice. This might be the case where the contract is silent on the matter of bank holidays but the employer has regularly given paid time off on bank holidays over a period, and there is no reason for workers not to expect that this will continue. (See Employment law manual > Contracts of employment > Express and implied contract terms > Implied terms for more details on implied terms.)

Drafting provisions to reflect business needs - wording examples

Whether drafting documentation around bank and public holidays for the first time, or considering amendments to existing documentation, employers should consider their business needs and the leave entitlement that they wish to grant. Example wording for different scenarios is set out below. Whether or not particular wording is appropriate will depend on the employer's situation and requirements. Where an employer is planning to make detrimental changes to the contracts of existing employees, it is likely to need to consult with them (see How to change the terms of existing employment contracts). To avoid having to do this, employers may choose to apply new terms only to new recruits.

Employers cannot reduce or contract out of the minimum statutory annual leave entitlement described above (see Introduction) even if the worker agrees to this, but can determine how statutory leave should be taken. Contractual rights may be agreed that exceed the statutory entitlement.

Inclusive of, or in addition to, bank and public holidays?

Employers need to decide whether bank and public holidays are to be included within the total holiday entitlement or granted in addition to the stated holiday entitlement.

Example wording: You are entitled to 28 days' paid holiday in each complete holiday year, inclusive of bank and public holidays.

With this wording, workers who work a five-day week would be entitled to a total of only 28 days' paid holiday per year. Leave taken on bank and public holidays would be deducted from their overall entitlement. If the holiday year started on 1 January and a worker took leave on 1 January (a bank holiday) and on 2 January (not usually a bank holiday in England and Wales), his or her leave entitlement would be reduced by two days, and he or she would be entitled to 26 days for the remainder of the year. If the same worker used all of the remaining 26 days prior to Christmas Day and Boxing Day, he or she would not be entitled to take those days as days of paid leave, and would have to work on them or agree with the employer to take unpaid leave.

Employers that grant holiday on this basis but that close on Christmas Day and Boxing Day should ensure that they give notice to employees that they must take holiday on these days, and refuse holiday requests that would result in the employee having insufficient leave left to use on those days.

Example wording: You are entitled to 28 days' paid holiday in each complete holiday year in addition to the usual eight bank and public holidays in England and Wales.

With this wording, workers who work a five-day week would be entitled to a total of 36 days' holiday per year (ie eight days more than the 28-day statutory minimum). Other wording may have the same effect, for example "together with the usual eight bank and public holidays" rather than "in addition to the usual eight bank and public holidays".

Business needs

Employers need to respond to bank and public holidays according to their own business needs, which will differ depending on the nature of the business. For example, retail businesses are often busier on public holidays and may wish to treat them as normal working days, whereas many offices and factories shut down. Some businesses may require certain workers (such as security personnel) to work on public holidays, while other workers are not required to do so.

Policy and contractual terms need to reflect the organisation's needs and ensure that it can require workers to work when it needs them to.

Employers should also consider the amount of notice that they want employees who request leave to give, and that they will give to employees when they require them to take leave. Contractual terms or a relevant agreement may vary the amount of notice that employers and employees must give under the statutory provisions (see Notice to take or not take leave).

Contractual notice terms should allow the employer to plan ahead so that it can give sufficient notice in the event that it will require workers to take holiday on a specific day, or so that it can refuse holiday requests on a particular day (for example where workers request to take holiday on a bank holiday but the employer needs them to work it).

An employer can accept shorter notice than that specified in the contractual terms from its workers but cannot give them less notice than that specified.

Example wording: You shall give at least [length of] notice of any proposed holiday dates and these must be approved by [the employer] in writing in advance. [The employer] may require you to take holiday on specific days by giving you advance written notice. [The employer] will give you [length of] advance written notice if you are required to work on a bank or public holiday. If no such notice has been given, you acknowledge that you will be required to take holiday from your entitlement on any bank or public holiday.

This wording is appropriate for workers who will not usually be required to work on bank and public holidays.

Example wording: You shall give at least [length of] notice of any proposed holiday dates and these must be approved by [the employer] in writing in advance. [The employer] may require you to take holiday on specific days by giving you [length of] advance written notice. You acknowledge that you will be required to work on bank and public holidays, unless otherwise notified by [the employer] in writing in advance.

This wording is appropriate for workers who will usually be required to work on bank and public holidays.

Example wording: You shall give at least [length of] notice of any proposed holiday dates and these must be approved by [the employer] in writing in advance. [The employer] may require you to take holiday on specific days as notified to you. You are required to take holiday from your annual entitlement for the working week during which Christmas Day falls, when [the employer] will be closed.

This wording is appropriate where there is an annual shutdown at Christmas.

Pay and time off in lieu

Employers need to consider their approach to pay on worked bank or public holidays, namely if they will attract an enhanced rate of pay. Employers should also consider whether or not they will grant time off in lieu and if there will be restrictions on when workers may take that time off in lieu.

Example wording: If you are required to work on a bank or public holiday, you will be paid your normal rate of pay.

This wording is appropriate for workers who will be required to work on a bank or public holiday as if this is a normal day without being entitled to a higher rate of pay.

Example wording: If you are required to work on a bank or public holiday, you will be paid an enhanced rate of [ …]. [The employer] reserves the right to change the enhanced rate by giving [amount of] notice to you in writing.

This wording is appropriate for workers who will be paid a higher rate than their normal basic rate if they work on a bank or public holiday.

Example wording: [The employer] may, at its complete discretion, permit you to take one day's holiday in lieu of any bank or public holiday that you have worked, to be taken at a time to be agreed by [the employer] in writing, in advance.

This wording allows the employer to grant the worker a day off in lieu of a bank or public holiday that he or she has worked. Employers should exercise their discretion reasonably and in a non-discriminatory manner.

Part-time and shift workers

There are different potential approaches to bank and public holidays in relation to part-time and shift workers. Some employers allow workers to take a day of leave if a bank or public holiday falls on a day on which they would normally work, but not where the holiday falls on a non-working day. However, this approach can lead to an imbalance between full-time workers and part-time workers, as part-time workers who work on Mondays (which is the day on which many bank holidays fall) will get proportionately more holiday than full-time workers, while part-time workers who do not work on Mondays will be disadvantaged.

Part-time workers

In relation to part-time workers, an employer that adopts the approach set out above could be vulnerable to claims that it has treated them less favourably than comparable full-time workers, in breach of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551). An employer in this situation may be able to rely on a defence that the difference in treatment was because the worker did not work on Mondays rather than because he or she worked part time (McMenemy v Capita Business Services Ltd [2007] IRLR 400 CS). However, the employer would need to be able to justify its policy objectively, to minimise the risk of a successful claim of indirect sex discrimination under the Equality Act 2010 (made on the basis that part-time workers are often women).

A less risky approach is to pro rate entitlement to time off in respect of bank and public holidays. This is the best practice approach recommended in the Government's (now archived) guidance document on part-time workers. For example, a worker who works three instead of five days a week would be entitled to take time off on 35ths of the bank and public holidays for the year. On the basis of eight relevant public holidays, he or she would be entitled to 35ths of eight days. This equates to 4.8 days' holiday for the year. If a public holiday falls on a day on which the worker usually works, the time taken off on that day can be deducted from the 4.8-day entitlement. If a public holiday falls on a non-working day, this will not eat into the worker's leave entitlement and he or she can take leave at another time.

Example wording: You are entitled to [x] days' paid holiday in each complete holiday year (calculated on a pro rata basis by reference to a full-time entitlement of [28] days' holiday in each complete holiday year). In addition, you are entitled to a pro rated entitlement [of x days] in respect of the usual eight bank and public holidays in England and Wales. Where, due to your pattern of work, you are unable to take all of your bank and public holiday entitlement on the days on which they fall, you will be able to take leave at another time as agreed with [the employer].

Where, due to your pattern of work, the bank and public holidays that fall on your normal working days exceed your pro rated bank and public holiday entitlement, you are required to take leave on those days by using your main holiday entitlement.

This wording is appropriate for a part-time employee who is entitled to bank and public holidays in addition to the statutory minimum and where the employer closes for business on bank and public holidays.

Example wording: You are entitled to [x] days' paid holiday in each complete holiday year inclusive of bank and public holidays (calculated on a pro rata basis by reference to a full-time entitlement of [28] days' holiday in each complete holiday year). Where your pattern of work coincides with a bank or public holiday, you will be required to take a day's holiday from your annual holiday entitlement on that day.

Where a bank or public holiday falls on a day that you do not normally work, you may take a day's leave from your annual entitlement at another time as agreed with [the employer].

This wording is appropriate for a part-time employee whose entitlement to bank and public holidays forms part of the statutory minimum and where the employer closes for business on bank and public holidays.

Shift workers

For shift workers, as with part-time workers, entitlement to holiday, including bank and public holidays, depends on the proportion of the year that they work and is pro rated accordingly.

Unfortunately, this is easier to calculate in retrospect, than when a bank or public holiday falls, because it will often not be possible for the employer to predict how many hours or days a shift worker with an irregular work pattern might work during the annual leave year. This difficulty applies not just to bank holidays, but to all holidays for shift workers with irregular patterns of work.

One way of calculating how much holiday a shift worker has accrued is to use a percentage. Workers who are entitled to the statutory minimum of 5.6 weeks' holiday per year accrue holiday at the rate of 12.07% of the hours they have worked. This figure is arrived at by taking the number of weeks' entitlement (ie 5.6 weeks in this example) and dividing this by the result of: 52 (being the number of weeks in a year) minus 5.6, multiplied by 100 (ie (5.6 / (52 - 5.6)) x 100) = 12.07%.

As far as public holidays are concerned, this means that (unless stated otherwise in the contract) a shift worker will be entitled to time off on (or in lieu of) a public holiday only if he or she has accrued that time off. This means that, from a practical perspective, it is preferable, where possible, to draft shift workers' contracts so that they are required to work on bank and public holidays if rostered to do so.

A necessary caveat is that, under the Working Time Regulations 1998, during the first year of employment, the amount of leave that a worker can take is what is deemed to accrue in advance on the first day of each month of employment at the rate of 112th of the worker's statutory entitlement for the year, rounded up to the nearest half day. As the shift worker's statutory entitlement for the year cannot be known until he or she has completed the year, the employer cannot comply with this. Therefore, many employers instead use the percentage calculation set out above.

Example wording: You are entitled to the equivalent of [5.6] weeks' paid holiday in each complete holiday year, calculated on a pro rata basis depending on the number of hours that you actually work, ie equivalent to [12.07]% of the hours that you actually work in each holiday year. Subject to [the employer's] agreement, you may take holiday only once it has accrued. Bank and public holidays will be treated as normal working days. If you are rostered to work on a bank or public holiday but [the employer] agrees that you may take accrued holiday on that day, your remaining holiday entitlement will reduce accordingly.

This wording would be appropriate for an employee who may be required to work on bank and public holidays.

Example wording: You are entitled to the equivalent of [5.6] weeks' paid holiday in each complete holiday year, calculated on a pro rata basis depending on the number of hours that you actually work, ie equivalent to [12.07]% of the hours that you actually work in each holiday year. Subject to [the employer's] agreement, you may take holiday only once it has accrued. In the event that a bank or public holiday falls on a day that you would normally be rostered to work, you are required to take this as a day's annual leave and your annual entitlement will be reduced accordingly.

This wording would be appropriate where the employer closes for business on bank and public holidays.

Not all employers require their employees to accrue leave before they can take it. The contract may allow workers, including shift workers, to take annual leave regardless of how much they have accrued, provided that, over the annual leave year, they do not take more than they accrue. To avoid a shift worker taking more holiday over the course of the annual leave year than he or she will accrue, the employer will need to keep track of how much has accrued and how much has been taken, including bank holidays, on an ongoing basis, so that, based on the 5.6-week entitlement, the worker does not take leave that is more than 12.07% of the total hours worked by the end of the year.

As with part-time workers, if the employer normally closes for bank holidays, a shift worker who is scheduled to work on a bank holiday but takes it as holiday will be using some of his or her entitlement. If he or she is not scheduled to work, the day will not eat into the entitlement, and the worker will be able to take a paid day off at another time.

Bank and public holidays and maternity, paternity, adoption and shared parental leave

As a general rule, during maternity, paternity, adoption and shared parental leave, workers are entitled to the benefit of the terms and conditions of employment that would have applied had they not been absent (except for the terms relating to remuneration). They continue to accrue 5.6 weeks' paid annual leave during family-related leave.

Bank and public holidays are normally taken on the days that they fall, so employees on family-related leave are unable to benefit from them at the time. The issue is whether or not they are entitled to a paid day off in lieu of the missed bank holiday.

The situation is relatively straightforward where bank and public holidays form part of the 5.6-week statutory minimum entitlement. In this case, where a bank holiday coincides with an employee's family-related leave, he or she will be entitled to a paid day off in lieu (because the bank holiday forms part of the minimum statutory entitlement).

Merino Gómez v Continental Industrias del Caucho SA [2004] IRLR 407 ECJ established that pregnant workers must be able to take their annual leave during a period other than maternity leave. This applies to the four-week entitlement set by the Working Time Directive and any period of leave in excess of this under national law (ie it applies to the 5.6-week entitlement). However, Gómez does not take account of the fact that, under the Working Time Regulations 1998, four weeks of the 5.6-week entitlement may not be carried over into the following leave year. (The remaining 1.6-week entitlement can be carried over into the following leave year by agreement.) Until this matter is resolved, employers should allow any days of holiday, including bank holidays, that form the 5.6-week entitlement but that cannot be taken due to family leave, to be taken at a later date.

The situation is more complex where bank and public holidays are in addition to the 5.6-week minimum. In this case, the employee's entitlement to a paid day off in lieu of the bank holiday may depend on the terms of the contract, including terms that are implied through custom and practice.

As mentioned above, Gómez makes clear that its principles apply to the minimum annual leave entitlement under national law, even where this exceeds the minimum four-week entitlement under the Working Time Directive. Whether or not the principles in Gómez extend to any further leave in excess of the 5.6-week statutory minimum that may be granted under the contract, is uncertain. Until the legal position is clearer, employers could either credit all missed bank holidays in excess of the 5.6-week entitlement and allow employees to take them at another time or make a payment in lieu of those days.

Employers can encourage employees to take holiday before they start their family leave, to avoid them returning with a large amount of accrued but untaken leave.

Sickness absence

Sometimes, a bank or public holiday will coincide with an employee's period of sickness absence. An employee may report sickness on a bank holiday that he or she was due to work. Alternatively, an employee may have been due to take a day's leave on a bank holiday but claim to be ill on the day. In this latter case, the question arises as to whether or not he or she should be granted another paid day off in lieu of the bank holiday that could not be taken due to sickness.

There is a history of case law concerning the accrual of annual leave during periods of sick leave and whether or not employees are entitled to take leave that they have been unable to take due to sickness, at a later date. European case law (namely Pereda v Madrid Movilidad SA [2009] IRLR 959 ECJ and Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales (FASGA) and others [2012] IRLR 779 ECJ) has established that employees who are on sick leave must be able to take their holiday at a later date than that scheduled. These cases concern only the minimum four-week entitlement to leave under the Working Time Directive and there has been uncertainty about whether or not the principles derived from them should be applied to the additional 1.6 weeks' entitlement under the Working Time Regulations 1998, or any further leave that an employer may grant under the contract. However, in relation to the additional 1.6 weeks' entitlement under the Working Time Regulations 1998, the Employment Appeal Tribunal in Sood Enterprises Ltd v Healy [2013] IRLR 865 EAT held that, in the absence of an agreement to the contrary, this leave does not carry over to the following leave year when a worker is on long-term sick leave.

The matter is complicated by the fact that, as mentioned above, under the Working Time Regulations 1998, four weeks of the 5.6-week entitlement cannot be carried over into the following leave year. Until this matter is resolved, the safest course of action for employers is to treat employees on sick leave as accruing holiday entitlement and entitled to take holiday, including bank holidays, that they are unable to take due to sickness, at a later time. The only exception to this could be the additional 1.6 weeks' entitlement under the Working Time Regulations 1998, where there is no agreement allowing employees to carry over this leave in the event of sickness.

In practical terms, employers may wish to guard against possible abuses of the bank holiday entitlement.

Where a worker normally works on bank and public holidays, but is sick on a particular bank holiday, the day should be treated like any other day of sickness, in terms of payment. However, given that there may be more incentive for workers to claim falsely that they are unable to work due to sickness on a bank holiday (because other family members or friends are off work), employers may consider introducing a more onerous sickness notification procedure than usual for bank and public holidays. For example, an employer might require its workers to produce a doctor's fit note instead of self-certifying (although the employer is likely to need to reimburse the employee for the fit note) or report the absence to a more senior manager than usual.

Workers who do not work on bank holidays but who are off sick when a bank or public holiday falls should be entitled to time off on another occasion in respect of that public holiday. As noted above, this may be limited to cases where the bank holiday forms part of the first four weeks' of the worker's entitlement. According to Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales (FASGA) and others [2012] IRLR 779 ECJ, it is irrelevant whether the sickness absence occurs before or during the leave concerned. If a worker is due to take a bank or public holiday off work but is either already off sick or reports sickness absence on the day, he or she will be entitled to reschedule the day's holiday. Therefore, it is important that employers have adequate notification and evidential procedures in place (for example in a sickness absence policy) to deter workers from abusing this entitlement. It is advisable for employers to require and make it possible for workers to report their sickness absence on the day itself. Employers might also require employees to provide a fit note as evidence of their incapacity.

Workers can take holiday during their sick leave if they choose to do so. Those on long-term sickness absence may wish to do this where they are entitled only to statutory sick pay during sick leave. If they take a period of holiday, they will be entitled to be paid their usual salary during that period. If an employee elects to take a day's holiday on a bank or public holiday, he or she will be entitled to be paid the same as if he or she had not been off sick.

Employers should ensure that their sickness absence policy provides for how workers should give notice of their wish to take holiday during a period of sickness absence.

Competing leave requests

Where employees are normally required to work on bank and public holidays, the employer may receive a number requests for time off on those days (for example from employees who want to be off work at the same time as family and friends, or who have childcare responsibilities for children who will be off school).

Employers that fail to deal with holiday requests in a fair and consistent manner could be vulnerable to claims of discrimination or that they have acted unfairly. Therefore, they should determine how they will deal with competing requests for leave and should ensure that their policies and procedures make this clear.

Criteria for dealing with holiday requests should be objective, to minimise the risk that they are unfair or discriminatory (because of a protected characteristic such as sex or race). For example, if two out of five people are required to work on Christmas Day one year, then an objective criterion would be to give priority for time off to workers who worked on Christmas Day the previous year. Employers might also determine competing requests on a "first come, first served" basis.

Additional bank holidays

Sometimes additional public holidays are granted by Royal Proclamation (for example for the royal wedding in 2011 and the Queen's Diamond Jubilee in 2012). Employers need to decide how they will approach additional bank holidays. This will be determined to some extent by the wording in the contract. As mentioned above (see The "usual eight"), where the contract entitles employees to take as paid leave "all bank and public holidays", the employer will have no choice but to grant the extra day in the usual way or negotiate otherwise.

Where the contract requires workers to work on "all bank holidays", the employer can require them to work on the additional day. If they are paid a higher rate for working on a bank holiday and the contract does not limit the number of bank holidays to which the higher rate applies, the employer must pay that rate for the additional day.

However, where the contract limits entitlement to a day off work (or to a higher rate of pay where bank holidays are worked) to the "usual eight" bank holidays, the employer will need to decide its policy in relation to the additional day.

If the employer chooses to give its workers the day off as an extra day's paid holiday (or pay them a higher rate if they work on that day), it should express this as being a non-contractual discretionary measure that applies only during the year in question. Otherwise, workers may, in future, have grounds to argue that time off (or the higher rate of pay) on additional bank holidays is a contractual right, implied by custom and practice.

If workers will be required to take the additional day off out of their existing holiday entitlement, the employer will need to plan ahead to ensure that it gives them the requisite notice (see Notice to take or not take leave).

If some or all workers will be required to work on the additional public holiday, the employer may wish to consider a one-off discretionary day off in lieu as a gesture of goodwill. Where workers will be treated differently, for example one receptionist out of three is required to work but the other two can take the extra bank holiday as leave, the employer should have objective criteria for this requirement and the choice of who will work, to minimise the risks of a discrimination claim (for example because of sex or race). In this scenario, the receptionist who works on the bank holiday must be compensated either by being paid or being granted a day off in lieu.

Scotland

Bank holidays are less widely observed in Scotland, but, as in England and Wales, entitlement to time off on public holidays depends on the terms of the contract.

There are nine usual bank and public holidays in Scotland: New Year's Day, 2 January, Good Friday, the first Monday in May, the last Monday in May, the first Monday in August, Christmas Day, Boxing Day and St Andrew's Day (or the following Monday if it falls at a weekend).

Local authorities in Scotland may also set "local" holidays, which vary from region to region. Employers with workers in Scotland should check whether or not their contracts entitle them to a day off work on local holidays.