With the Bank Holiday Weekend in sight, employees all over the country will be counting down the hours until they can down tools until next Tuesday. And with a heatwave predicted to grace the weekend, for many it will be a time spent having BBQs, milling around in beer gardens and recharging the batteries.
However, some employees will unfortunately be working, like those selling you coals for your BBQ or pouring your Bank Holiday pint. So, can employees scheduled to work be forced to actually come in? We spoke to the experts to find out.
With there being eight recognised public holidays in the UK peppered around year, Claire Flavin, from the Employment Law team at Aaron & Partners LLP, explained that “there is a common misconception amongst many employees that they are entitled to time off work on these public holidays."
Setting the record straight
“Whether an employee can be required by their employer to work on a bank holiday is generally a matter that will be dealt with in their contract of employment. There is no statutory right to time off work on a public holiday. Often, contracts of employment state that an employee will receive bank holidays as part of their annual leave entitlement, but the company can object to the employee taking this holiday if they so require.
“If an employee refuses to work on a bank holiday and does not attend work when the employer has the right to require them to work, this can be treated as an unauthorised absence and dealt with under the disciplinary procedure. Refusal to work could be held to be gross misconduct, which may result in summary dismissal of the employee and an employee should be reminded of this should they make it clear that they do not intend to work the bank holiday,” Flavin added.
Check your contract
Karen Holden, Founder of A City Law Firm agreed that employees have no statutory legal right to time off on bank holidays. She explained: “Providing there is no discrimination, if they don't have this right, employers can require them to work. If an employee works on a bank holiday, there is no statutory right to extra pay unless specified in the contract. If the contract is clear, there is no obvious discrimination they will be in breach of their contract if they refuse to work.”
Working Time Regulations
Another point raised by Tessa Fry, Head of Employment at London solicitors Grower Freeman, is that employers do have the right to require employees not to take annual leave on particular dates. “However, under the Working Time Regulations, an employer only needs to give one day’s notice to require employees to work on a specified day such as a bank holiday and can cancel any leave previously approved.
“In practice, this should only be used in urgent cases and compensation would be due to employees for cancelled holidays. Any employer who unreasonably cancels holiday leave, could find themselves breaching the implied term of trust and confidence resulting in constructive dismissal claims.”
In the instance that an employee refuses to work a bank holiday and fails to turn up for their shift, the employer has the right to refuse them that day’s wages because of an unauthorised absence. Additionally, Fry explained that employers can also bring a disciplinary proceeding.
'No automatic legal right'
Lastly, Tom Moyes, a Partner in the employment team at Blacks Solicitors LLP, said that the bank holidays should serve as an important reminder that employees aren't automatically entitled to take them off. "Legally, employees do have the right to take 5.6 weeks off per year and, in fact, the statutory annual leave entitlement was raised from 4.8 weeks in order to remedy the fact that there isn’t an automatic right to take bank holidays off.
“Whether or not an employee is required to work bank holidays is a matter for their employment contract. A contract may say that the employee has bank holidays off or that they may be required to work and will receive a day in lieu.
“If an employee refuses to come in on a bank holiday, and their contract has given the employer flexibility, it is a conduct issue and the employer can discipline them.”