KL writes: One of my employees claims she should be paid double time for working on a bank holiday. Her contract stipulates normal pay and a day in lieu. Is she right?
There is no legislation that stipulates the way in which employees should be paid for working on a bank holiday, writes Peter Done, managing director of Peninsula. What the law does say, however, is that an employee should receive a minimum of 5.6 working weeks holiday which can include bank holidays. So, if an employee works on a bank holiday, then he or she should be allowed to take another day off in its place during the leave year.
Therefore, if you provide just the minimum 5.6 weeks of leave, and were to pay the employee double time for the bank holiday instead of providing another day off, you would be in breach of the Working Time Regulations 1998 because a full 5.6 weeks would not have been provided. In this instance, the day in lieu of the bank holiday cannot be replaced by money.
Assuming that the employee has agreed the contract of employment, she is bound by this term. As the term does not breach the working-time legislation, you are perfectly able to enforce it. It does not require amendment.
Some employers choose to offer more than the statutory minimum holiday — for example, time and a half or double pay for working on a bank holiday in addition to an extra day in lieu — but inclusion of this in a contract is completely at the discretion of the employer and is not required by law.
It may be worth having another look at this employee’s contract in case her terms are different to those of your other staff, and also checking whether she was transferred to your firm from another company. In this case, her terms of employment may have transferred with her.
Notwithstanding this, the government has made it clear that the minimum entitlement must be taken as time off and cannot replaced with pay in lieu because annual leave is a health and safety measure to ensure that employees have time to rest and recover.