What are the rules on bank holidays?my mothers boss wants to put her on monthly pay and bank holidays have to be booked and i think she said that they have to use a day of annual leave otherwise they expect her to work can they do this as i was under the impression that employers had to give you a day off as it is a government instruction can you help? | |
BASIC POSITION
Preliminary note:- As from 2nd August 2004 the EC Working Time Directive 93/104/EC and the Horizontal Amending Directive 2000/34/EC were revoked and consolidated into a single consolidating directive EC Working Time Directive 2003/88/EC. This makes no changes of substance. Notes and numberings below refer to the "old" directive(s).
The Working Time Regulations 1998 gave almost every worker the right to four weeks paid holiday per year, or proportionally for part of a year. A full time worker who works 5 days a week would thus be entitled to a minimum of 20 paid days holiday per year (he may of course be entitled to more than this statutory minimum under the terms of his contract). Under the regulations a worker has no right to carry untaken holiday forward to the next year.
Legally, this includes bank and public holidays taken off work (see Holidays/public and bank holidays ). Neither the EC directive nor the UK regulations made to implement it cover bank and public holidays. Legally the right to take bank and public holidays therefore continues generally to be a matter for agreement between employers and their employees. As there are 8 bank and public holidays in England, the practical effect is that if bank and public holidays are taken as days off work the legal entitlement to annual holiday can be regarded as being only 12 days.
New rules phased in from 1st October 2007 increase the minimum number of days of annual paid holiday for most full time workers to 28 as from April 2009, pro rata for part time workers (see notes at Working Time Regulations/2007 changes (holiday rights) ).
Until the Working Time Regulations 1998 SI 1998/1833 came into force on 1st October 1998, holiday rights in the UK were generally simply a matter for agreement between employer(s) and employee(s). There was no general statutory provision giving employees a right to holidays nor to pay in lieu of holiday. This was changed by the Working Time Regulations 1998 made to fulfil the UK's EC obligations under the Working Time Directive 93/104/EC.
The regulations give a worker the right to his normal weekly pay in respect of holiday entitlement (WT regs 1998, reg 16). If he does not take holiday he cannot claim pay in lieu unless his employment has ended (see Working Time Regulations 1998 (SI 1998/1833) reg 13(9)(b). An employee is entitled to written particulars of his holiday entitlement (ERA 1996 s.1 (4)(d)(i) and see Statement of particulars of employment/obligatory contents of statement ).
It is automatically unfair dismissal to dismiss an employee for asserting his right to annual holiday under the Working Time Regulations (see notes at Unfair dismissal/automatically unfair dismissals/assertion of statutory rights and for an example see Armstrong v Walter Scott Motors EAT 2003 EAT on 19th March 2003.
The question of whether a worker who is absent on sick leave is entitled to accrue paid holiday rights has been something of a "hot potato". The question was resolved by the ECJ in favour of employees in a judgment delivered on 20th January 2009 ( Stringer & ors v HMRC ECJ 2009 ) and by the House of Lords on 10th June 2009 (see Ainsworth & ors v Commissioners of Inland Revenue HL 2009 UKHL 31).
The ECJ has also ruled that a worker who falls sick while on holiday is entitled to extra holiday to compensate after he has recovered ( Pereda v Madrid Movilidad SA, ECJ 2009 IRLR 959 and see notes at Illness, sickness and accidents/time off for ).
Special rules under the Children and Young Persons Act 1933 s.18 provide that children below compulsory school age (for example paper boys - see Ashby v Addison and another (Brayton News) EAT 2003 ICR 667, EAT) must have annually at least two consecutive weeks without employment during school holidays (see also notes at Children and young persons/Working Time 15 and over and/or Children and young persons/Working Time under 15 ).
By way of exception to the general rule farm workers have long had the legal right to paid annual holidays and pay on public holidays on which they are not working. These rights continue separately (see Specific employments/agricultural workers/wages orders ). Further, in addition to statutory rights there may be cases in which, for example in a particular industry, there will be additional implied holiday terms (see Implied terms in employment contracts ).
The Government webpage, "Holiday entitlements: introduction" provides useful guidance. In addition an ACAS advice leaflet on "Holidays and Holiday pay" is available on the ACAS website.
See also notes at Holidays generally and/or at Holidays/part time and shift workers .
Your employer does not have to give you a day off on bank holidays - if you are required to work, then you either have to take a day out of annual leave, or you work.
I worked for a company a few years ago where it was required in contract that you worked three of the bank holidays during the year, if not more. There is no government requirement that you get a bank holiday off work.
Bank holidays are only days off if it says so in your contract of employment. Lots of people work on bank holidays. If they didn't, you wouldn't be able to go shopping on a bank holiday.
All that bank holidays originally were was days when the Bank of England was closed. It's never been a law for anyone else.
