In one of his first acts as King Charles III, the monarch has announced that the day of the Queen’s funeral, Monday 19 September, will be a bank holiday across the United Kingdom. This will be the tenth public holiday in 2022 in England and Wales, following the additional bank holiday for the Queen’s Platinum Jubilee in June. The standard number of bank holidays in any given year is eight in England and Wales, nine in Scotland and 10 in Northern Ireland. In this article, the term bank and public holiday are used interchangeably.
No automatic right to time off on the bank holiday
The government has confirmed that this bank holiday will “operate in the same way as other bank holidays”. This means that there is no statutory entitlement to time off - whether a worker is legally entitled to a day’s leave will depend on the wording of their employment contract or the discretion of their employer.
Employment contracts can be worded in a variety of ways. Some contracts will state that the worker is entitled to a certain number of days’ annual leave “in addition to public holidays” (without limiting those public holidays to the standard eight), which will entitle them to any additional public holidays, including the public holiday on 19 September. Alternatively, other contracts may expressly limit the number of public holidays to which the worker is entitled to “the usual or standard public holidays”, in which case, the worker would not have a legal right to time off on 19 September.
In some cases, employees may be expressly required to work on public holidays, but may be entitled to a higher rate of pay or to take off another day in lieu - so employers will need to check this too.
Request or requirement to take annual leave
If workers do not have a legal right to take time off on 19 September, they may instead request annual leave in the normal way. Employers should consider such requests carefully and with sensitivity, given the possible impact of the Queen’s passing on employee wellbeing. Some individuals are reporting that the event has triggered or exacerbated mental health issues, such as depression and anxiety, and for others it is leading to them re-living previous losses. Permitting workers time off to process these feelings and pay their respects to Her Majesty could be a way for employers to support their staff during this unprecedented time. Indeed, the government has stated that it expects, “employers to respond sensitively to requests from workers who wish to take the day of the funeral off work.”
Alternatively, employers may decide to close on 19 September and require staff to use some of their annual leave entitlement on that day, if they are not entitled to the day off under their contract. Employers must generally ensure that they give workers at least two days’ notice if they are requiring them to take one day’s annual leave on a specific date, but greater notice is advisable. If employers are considering taking this course of action, they should not delay in communicating this to their workforce. One difficulty with this approach, however, is how an employer deals with workers who have already used or allocated their annual leave entitlement for the year or those who object to using their annual leave entitlement in this way.
Employer discretion
In circumstances where a worker does not have a contractual right to the day off on 19 September, their employer may choose to exercise its discretion to grant an additional day’s leave. There is likely to be a degree of pressure on employers to exercise such discretion where practicable, and employers should consider the reputational consequences of them failing to do so, which may be viewed by staff, customers and third parties alike as a lack of respect for the Queen. Against the backdrop of the current war for talent in the job market, employers may want to consider the commerciality of such a decision. Failing to allow workers to take time off on the day of the Queen’s funeral may also impact employee morale and relations, and have potential ramifications on employee wellbeing.
For some employers, it may simply be more practicable to grant a day’s leave on 19 September, given the number of staff members who will have childcare issues due to the closure of schools, and the expected disruption to public transport in London. This would also avoid conflict and any issues arising from workers within the same organisation having different contractual entitlements, with some being legally entitled to the day off and others not (possibly due to a legacy of acquisitions and mergers or different contractual terms).
Employers will of course need to take into account the sector and business needs, as in some cases, it may of course not be possible to give employees the day off or to close.
Avoiding discrimination claims
Employers should also consider the position of part-time workers. Where the employer chooses to grant an additional day’s leave on 19 September, to reduce the risk of a discrimination claim, it should consider giving any part-time workers who are not expected to work on that Monday at least a pro-rated entitlement to the additional leave. For example, if adopting this approach, a worker who normally works 50% of the week should be given half a day’s additional leave to be taken on what would be a normal working day. This extends to atypical workers, who may work varied days and hours; however, calculating their entitlement in respect of the additional holiday will be more complicated and employers will need to consider the pros and cons of this approach.
Employers should ensure that employees who are currently on family friendly or sick leave, and who would be entitled to the additional public holiday if working, accrue an appropriate amount of leave to be taken upon their return.
Pre-booked annual leave on 19 September
If a worker has a contractual right to time off on 19 September, and they have already booked leave on that day, then an additional day’s leave will be added to their annual entitlement for 2022. However, where the employer is exercising its discretion to grant additional leave on that date, the situation is not clear cut. The employer would be under no legal requirement to grant additional leave to the worker upon their return from their pre-booked leave, in lieu of the additional public holiday. A refusal to do so may, however, negatively impact the relationship between the employer and the worker in question. A solution may be to allow the worker to “cancel” the pre-booked leave on that date and then be granted the additional leave at the same time as other members of staff.
Requirement to work on the public holiday
For many organisations, such as those in the hospitality industry or those in transport or emergency services, closing on 19 September is simply not an option and may, in some cases, be a missed opportunity for revenue generation.
Where workers have a contractual right to the additional public holiday but are required to work on the day, employers will need to agree with such workers that they may take the additional leave on a later date. Care should be taken to avoid discrimination when selecting which employees are required to work on the public holiday and employers should also be sensitive to the wellbeing of staff and their individual responses to the Queen’s passing. A potential compromise could be, where possible, to allow workers a couple of hours’ time off to watch the funeral procession and ceremony on the television, and to provide space and facilities for them to do so.
There is no statutory right to enhanced pay for working on a public holiday, but employees may be entitled to additional pay, such as double or even triple pay, if this is provided for in their contracts. Given other economic pressures at the current time, a contractual entitlement to enhanced pay on 19 September may force some employers to have to close for the day, if unable to meet the higher employee wage bill.
Communicate swiftly and with sensitivity
For unavoidable reasons, businesses have been given little notice of the impending public holiday and will have to make a swift decision as to how to approach the day; whether their staff members have a contractual entitlement to the additional leave, whether they will be required to work or to take the day as annual leave, or whether the employer will exercise their discretion to grant an additional day’s leave. If workers are required to work on 19 September, employers and workers will also need to navigate other practical issues, such as disruption to public transport and childcare issues. Whatever decision is taken, employers should communicate this clearly and with sensitivity, given the heightened emotional context and national and cultural significance of recent events.
Kerry Garcia
Sarah Taylor