Advice provided by Alan Price, published in the Business Doctor column in The Sunday Times - Sunday August 16th.
TG writes: The amount of work were have at the moment means that I will need ask people to work the August bank holiday. As this is the first bank holiday we have asked people to work can we make it compulsory for employees to attend and we have to pay staff extra for working the holiday or can we give them a day in lieu?
In the UK, the Working Time Regulations 1998
give an employee the right to take a minimum of 5.6 working weeks a year, writes Alan Price, employment law director of Peninsula. There is no legal right for employees to receive time off for bank holidays so long as they receive their minimum holiday entitlement. Any right to time off will depend how their contractual holiday entitlement is written and, in the absence of a contract, on what has been verbally agreed or has become custom and practice.
Where the contract states that workers are entitled to time off for bank holidays, making it compulsory that staff have to attend work will constitute a breach of contract for which the employee could be entitled to resign and claim constructive dismissal
. Instead, in these circumstances, it should be agreed with the employees, preferably in writing, that they are willing to attend work on the August bank holiday. It is likely that offering staff an incentive, such as an increase in hourly pay or a one-off bonus, will mean that they are more likely to agree to work the holiday to meet the needs of the business. Where working the bank holiday means that the employee will not be entitled to their 5.6 weeks annual leave, they should be entitled to take the day at a later date. If the employees are entitled to take the bank holiday off, and they refuse to work, they should not be subject to any form of disciplinary action.
Where the contract is silent on time off for bank holidays, and there is no implied custom or practice, staff can be required to work bank holidays. Again, whether they have the right to an increase in pay or time in lieu, will depend on contractual arrangements or what has been carried out in the past, though there is no automatic right to this. For example, if employees have always been paid an enhanced rate for working bank holidays in the past, this is likely to have become an implied term which, if not kept to, could constitute a breach of contract.
For further information on bank holiday working please contact the Peninsula Advice Service on 0844 892 2772.