News - Bank Holidays – Having Their Cake and Eating It?
27/07/09
Bank holidays are still a source of confusion for many employers.
All employees now have the right to 28 days holiday each year but we are still frequently asked whether or not this includes bank holidays and how part-time employees fit in.
The answers to these questions are simple – it is up to the employer to decide whether or not bank holidays are included in the 28 days so the wording of an employee’s contract and/or handbook is crucial.
The 28-day entitlement is normally a mix of public holidays which must be taken on days set by the employer (such as Christmas and New Year) and “free days” which may be taken by the employee at any time, subject to the employer’s agreement.
But what about part-time employees? If the employer is closed on a Monday bank holiday and the part-time employee does not work on Mondays, should he/she be given a day off in lieu?
This very question was put to the Court of Session in 2006 (McMenemy v Capita Business Services Ltd) by an employee who worked in a call centre that was operation seven days of the week. The employee worked Wednesday to Friday and his contract stated that employees would only benefit from bank holidays if they normally worked on the day of the week on which the bank holiday fell. The employee claimed that this was less favourable treatment on the basis on his part-time status and that he ought to be given time off in lieu of the bank holidays he missed out on.
Proving that common sense does occasionally prevail in employment cases, the Court of Session ruled that he was being treated less favourably because he did not work on a Monday and not because of his part-time status.
My top tip is not to focus on the bank holiday issue. Look at total holiday entitlement allowed for full-time employees and ensure part-time staff get a pro rata equivalent.
Lili Hunter Consulting and Lili Hunter Legal are located at 499-501 Union Street, Aberdeen, AB11 6DB.