Queen's Diamond Jubilee holiday: overview

Chris Holme and Francesca Morley of Clyde & Co LLP begin a series of articles on the impact of the Queen's Diamond Jubilee holiday on employers with an overview that looks at employees' rights to time off on the Diamond Jubilee bank holiday. 

Introduction

There will be an additional bank holiday in 2012 to celebrate the Queen's Diamond Jubilee. This is not the first time in recent years that there has been an additional bank holiday to celebrate a royal event. The royal wedding on 29 April 2011 was also marked by a bank holiday. 

Traditionally, bank holidays are days on which banks may close for business under the Banking and Financial Dealings Act 1971. Under s.1(3) of the Act, "Her Majesty may from time to time by proclamation appoint a special day to be, either throughout the United Kingdom or in any place or locality in the United Kingdom, a bank holiday under this Act. " The Government has announced that Monday 4 June 2012 and Tuesday 5 June 2012 will be bank holidays (see the Directgov website). More specifically, the traditional bank holiday at the end of May will be moved to Monday 4 June 2012 and there will be an additional Jubilee bank holiday on Tuesday 5 June 2012. The extended bank holiday weekend will apply to England, Wales, Scotland and Northern Ireland. 

Buckingham Palace is coordinating a programme of celebrations, which will take place over the extended bank holiday weekend (see the British Monarchy website for more details). However, not all employees will be entitled to take the additional bank holiday as leave to enjoy the celebrations.

Statutory entitlement

While many employees may assume that they will have the right to take the bank holiday off work for the Queen's Diamond Jubilee, there is no statutory right to leave for any of the bank or public holidays (other than for those employees covered by the Banking and Financial Dealings Act 1971). Under the Working Time Regulations 1998 (SI 1998/1833), as amended by the Working Time (Amendment) Regulations 2007 (SI 2007/2079), employees are entitled to a minimum of 5.6 weeks' paid annual leave, which equates to 28 days' paid annual leave for an employee who works a five-day week. However, the Regulations do not specify on which days holidays must be taken and this entitlement can include bank and public holidays. When holiday can, or must, be taken is a matter for agreement between an employer and its employees.

Contractual rights

When determining whether or not an employee is entitled to a day off work on a bank or public holiday, such as the bank holiday for the Diamond Jubilee, the employer should first consider the employee's contractual terms.

Some contracts make clear that the employee is entitled to take all bank holidays as leave, in which case he or she will have the right to take a day's leave in respect of the additional bank holiday for the Diamond Jubilee. However, some contracts are less clear. A contract may state that the employee is entitled to take all "usual" bank holidays as leave. This would not confer a right to the additional bank holiday for the Diamond Jubilee, which applies only in 2012 and does not constitute a "usual" bank holiday. Some contracts expressly state that the employee is entitled to eight bank holidays, which would mean that he or she is not contractually entitled to the additional bank holiday. In this situation, the employer will need to consider whether or not it wishes to grant staff an additional day's leave in respect of the Diamond Jubilee.

For employees who are entitled to take the additional bank holiday off work, the contract may provide that the day is taken from their annual leave entitlement. For example, if a contract states that the employee has 28 days' leave, including all bank holidays, he or she could be required to use a day from this 28-day entitlement, in respect of the bank holiday for the Diamond Jubilee. On the other hand, a contract that states that an employee is entitled to 20 days' leave plus all bank holidays will entitle that employee to benefit from an additional day off work on 5 June 2012 without losing a day from the core 20 days' holiday.

Where an employer wants to require its employees to take the additional bank holiday on 5 June (because, for example, it wants to close the business for the day) but an employee does not want to take a day's holiday (because it will be taken out of the annual leave allowance and he or she would prefer to take leave at another time), the employer can usually require that the employee take the day's leave. In the absence of a relevant agreement to the contrary, the employer must provide adequate notice of the leave in accordance with reg.15(2) of the Working Time Regulations 1998, which provides that notice must be at least twice the length of the leave to be taken (see Timing of holiday in the Holiday and holiday pay section of the XpertHR employment law manual for more details).

Part-time employees

Employers need to consider the rights of part-time employees in relation to the Diamond Jubilee bank holiday. If bank holidays are pro rated for part-time employees (which avoids less favourable treatment), the employer should take into account the extra day's bank holiday in the 2012 pro rata calculations.

Payment

Employees have no statutory right to be paid an enhanced rate of pay for working on a bank or public holiday. An employee's contract will determine the pay rate for working on a bank holiday, although the employer and employee may agree other pay arrangements in advance of the Diamond Jubilee. If the contract makes clear that only the standard rate of pay applies to bank holiday working, this will extend to the additional day. Conversely, where an employee's contract entitles him or her to a higher rate of pay if a bank holiday is worked, this entitlement will extend to the additional day unless the contract makes clear that the higher rate applies only to the usual eight bank holiday days per year.

Business needs

As a result of the extended weekend to celebrate the Queen's Diamond Jubilee, the first week in June 2012 will consist of a three-day business week. Employers that grant staff the additional day off (either through choice or because the wording of their contracts requires them to do so) will be alert to the need to ensure that business needs are met during this time. In some sectors, it is likely that staff will be required to work over the Diamond Jubilee bank holiday. This will be particularly difficult for some employees with children given that schools will be closed over the bank holiday period. As a result, there may be a high demand from employees with children to be able to take the bank holiday off work and employers will need to determine how they will deal with competing requests.

Employers should be planning how they will deal with the Diamond Jubilee bank holiday. They should check the contractual entitlements of staff in respect of leave for the additional bank holiday and consider business needs and potential staffing levels well in advance of June.

Employers that do not allow staff to take the additional bank holiday may find that they experience higher than usual levels of unauthorised absence and reported sickness absence. Employers should make clear to staff how they will deal with absenteeism over the Diamond Jubilee period (for example that it will be monitored and that employees will be expected to account for their absences). This should act as a deterrent to some employees who are considering taking unauthorised absence or reporting absence as sick leave when this is not genuine.

Finally, employers should clearly communicate to employees their entitlements in respect of the Diamond Jubilee bank holiday, and the arrangements that they will be putting in place concerning cover. Careful planning and good communication is likely to reduce the risk of absenteeism and other issues arising around the time of the celebrations.

Next week's topic of the week article will be a checklist to help employers prepare for the Queen's Diamond Jubilee holiday and will be published on 16 January.

Chris Holme (Chris.Holme@clydeco.com) is a partner and Francesca Morley (Francesca.Morley@clydeco.com) is a trainee solicitor at Clyde & Co LLP.

Further information on Clyde & Co LLP can be accessed at www.clydeco.com.