On 19 September 2022 many (but by no means all) UK workers received an additional bank holiday on the same day as the State funeral of Queen Elizabeth II. This was the second additional bank holiday purportedly given to workers this year (meaning there are 10 rather than 8 bank holidays over a 12-month period).
Had the Government wished to do so it probably could have ensured that every non-essential worker (not emergency services, infrastructure engineers, etc) was guaranteed the day off of work but I don’t think that would have been particularly practicable.
The result was whether the question as to whether worker benefitted from a day off was determined by two situations:
First, if an employee’s contract of employment expressly requires that a worker shall be given a day off on any announced bank holiday, or an alternative day of to be taken at a later date then this needs to be complied with. If it is not, then the employee will likely have a legitimate complaint that the employer has breached the employment contract. However, many contracts do not say that; instead, they say that a worker is entitled to 8 public holidays a year. If that is what the contract sets out, then any additional bank holidays are not included.
For example, before the state funeral some public authorities in the Capital were requiring its workers to work non-essential jobs and face dismissal if they refused. It is unlikely these workers have any legal non-collective recourse against such an imposition, however unreasonable.
Second, employer may out of benevolence, in this case in deference to its monarchical sympathies, or fear of adverse PR (just ask Center Parcs about that!) grant workers the day off on an additional public holiday.
The Statutory Scheme
When the UK was a member of the EU it was obligated to implement the Working Time Directive (WTD) into UK law. The WTD guarantees that every worker is entitled to a minimum of 20 days annual leave. The UK implemented the WTD by passing the Working Time Regulations 1998 and, at present that remains part of UK law despite Brexit (although that is likely to change soon given the Government’s The Retained EU Law (Revocation and Reform) Bill 2022).
There is a key difference between the WTD and WTR, the WTD guarantees 20 days annual leave while the WTR guarantees a minimum of 28 days annual leave. The reason for the difference is because the UK worker’s entitlement includes the UK’s eight days public holidays. In that way, even though a worker is not entitled, unless their individual contract requires it, to have the eight days public holidays on the day they occur they are guaranteed to be able to take the eight days extra holiday but only if the contract entitles the worker to the lowest possible annual leave allowance that was permissible under the WTD.
So, for example, a worker with an annual leave allowance in their contract of twenty days is, under the WTR, guaranteed the full extra eight days public holidays as a legal right. By contrast, if a worker has an annual leave allowance of 25 days a year, then they are in reality only guaranteed to be able to take an additional three days out of the eight public holidays.
In this way the belief that every UK worker is entitled to take all the UK’s public holiday’s off as additional leave, either on the day or at another time is false. It is only legally guaranteed to those on the lowest possible annual leave allowance or those who are guaranteed this in their employment contract.
And, when it comes to times when additional public holidays are announced, as they have been this year the situation is even more uncertain. The WTR has no effect whatsoever on the ability of persons to benefit from these days which means government announcements, such as those that were made for the Jubilee, that all UK workers would benefit is untrue. Apart from the employment contract there is no legal right for any workers to receive these.
What is to be done?
So, what is to be done? For trade unionists the starting point is to examine the contracts of employment and ensure that all new starters (and existing members, of course) have an employment contract that guarantees that workers will receive additional annual leave for a minimum of eight days a year and for any additional public holidays announced with no detriment to pay.
Politically, at a time when the WTR are in this current Government’s cross-hairs we should be campaigning for legislation to expressly recognise the right for UK workers to receive paid leave for all UK public holidays, both the normal eight days and any additional announced public holidays. I fear however, that one of the battles (alongside reducing the health and safety restrictions on working hours and weeks and the right to holiday pay) may be to attack the annual leave minimum itself.
The issue in a UK context is not only that public holidays are largely unenforceable but also that, relatively, there are so few of them. At only eight days in a normal year, we lag significantly below the international average. In the wake of the death of the Queen over 150,000 people have put their names on a petition to add an additional bank holiday in commemoration of her reign. If you agree please go over and add your names. For myself, as a person with republican leanings, I am ambivalent about the reason but an additional day’s holiday for workers is an additional day’s holiday, whatever the reason. Come the abolition of the monarchy we can always rename the annual holiday!
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