Bank holidays changes – May 2022

To mark the Queen’s Platinum Jubilee, the May bank holidays will be moved in 2022. Croner-i looks at the effect these changed dates may have on employers

In order to commemorate the Queen’s Platinum Jubilee, the late May bank holiday, originally Monday 30 May, will be moved to Thursday 2 June and there will be an additional bank holiday on Friday 3 June across England, Wales, Scotland and Northern Ireland.

This may have an impact on employer operations and employee time off as employees do not have an automatic right to time off on bank holidays.

How will the change impact employee entitlements?

Employee contracts should be checked to determine what effect the date change and extra day will have on entitlements. Contracts may differ greatly, and it is important to know the specific position to ensure that:

• Contractual entitlements are not breached

• Employees know where they stand in terms of time off

• Employers have sufficient cover on the affected days.

While the law does not prescribe how entitlements should be set out, it is likely that a list of bank holidays observed by the employer is provided in a Statement of Main Terms (SMT). The expressions used will then dictate the position regarding the entitlement to the moved bank holiday in May and the additional day in June.

What is the entitlement to the moved bank holiday – Thursday 2 June 2022?

The following examples illustrate how bank holiday entitlement is recorded in the most common contract variations:

1. The SMT states employees are entitled to time off on all bank holidays. — an employee will be contractually entitled to a day off on Thursday 2 June 2022 and not Monday 30 May 2022.

2. The SMT provides a list of the bank holidays to which employees are entitled and this includes reference to the ‘Late May bank holiday’ or ‘Spring bank holiday’. — an employee will be contractually entitled to a day off on Thursday 2 June 2022 and not Monday 30 May 2022.

3. The SMT provides a list of the bank holidays employees are entitled to and this includes reference to ‘Monday 30 May 2022’ or ‘The last Monday in May’. — because a bank holiday does not exist on those dates in 2022, this wording creates a contractual anomaly which does not clarify entitlement in this situation.

4. The SMT provides a list of days off as part of employees’ annual holiday entitlement but does not contain specific reference to them being ‘bank holidays.’ For example, ‘You are entitled to time off on the following days…’ and this includes reference to “Monday 30 May 2022′ or ‘The last Monday in May’. — an employee will be contractually entitled to a day off on Monday 30 May 2022 and not Thursday 2 June 2022.

Contracts with flexibility

Some contracts will allow for flexibility with the days that are to be taken as a bank holiday, meaning employers can require the employee to work on the bank holiday listed and offer an alternative day off instead. This will be particularly useful for employers who use the wording shown in variations 3 and 4 above but want the employee to work on the Monday and take leave on the Thursday because, for example, the business shuts down on all bank holidays.

This flexibility can be expressed in different ways. A common example is:

‘You are entitled to the following bank holidays, or alternative days as decided by us:…’.

Where this flexibility exists, employers can rely on it to designate Thursday 2 June 2022 as a bank holiday.

Contracts with no flexibility

Employers with SMTs which include variations 3 and 4 and do not reserve any flexibility to nominate alternative days may decide to keep the situation as it is — i.e. treat Monday 30 May 2022 as the ‘bank holiday’ and require employees to work on Thursday 2 June 2022.

Alternatively, if the employer wishes to align its bank holidays with the official UK bank holidays for 2022, a temporary amendment to employees’ terms and conditions will, in theory, be needed. However, employers may wish to take a more informal approach to achieving their aim of adjusting their bank holiday entitlement, taking the view that the change affects one leave year only, is relatively minor in its impact on contractual terms, poses no real detriment to employees and that most employees are likely to be in favour of the change.

The informal approach would include confirming to all employees that, to align the employer’s bank holidays with the UK’s official bank holidays for 2022, the Late May bank holiday will be observed on Thursday 2 June 2022 instead of its usual date.

Some resistance may be encountered from a very small minority of employees who, for example, have already made travel plans for May 2022 which counted on Monday 30 May being a bank holiday, and attempt to insist on their contractual rights. However, these can be managed on a case-by-case basis to achieve a compromise.

Alternatively, the official approach would involve obtaining written agreement to the change from all employees. Where an employer has 20 or more employees who are to be affected by the change, this approach would involve consultation with worker representatives or, where a trade union is recognised for collective bargaining and the terms that fall within that recognition agreement include annual leave entitlement, with the union.

What is the entitlement to the additional bank holiday – Friday 3 June 2022?

The most common contract variations here are:

1. You are entitled to 28 days’ holiday during each full holiday year including the following public/bank holidays… — if the SMT only outlines the eight typical bank holiday days, there is no contractual obligation to allow the extra day on Friday 3 June 2022.

2. You are entitled to 28 days’ holiday during each full holiday year including the eight public/bank holidays. — an employee will be contractually entitled to eight bank Holidays only. Employers can work with their employees to decide what eight days they will use. For example, they might take 2 and 3 June 2022 but not have Easter Monday off.

3. You are entitled to 20 days’ holiday during each full holiday year in addition to public/bank holidays. — an employee will be contractually entitled to all bank holidays in that leave year, including Friday 3 June 2022.

4. In addition to the annual holiday entitlement, you are allowed the following bank holidays each year with pay or alternative days as decided by us… — if the SMT outlines the eight typical bank holidays, there is no contractual entitlement to the extra bank holiday. However, employers might choose to allocate Friday 3 June as their Late May/Spring bank holiday and have their employees work on Thursday 2 June.

Giving confirmation to employees

Action should be taken to inform the workforce of the employer’s decision on the bank holidays to remove the potential for any confusion or doubt.

Where contracts do not explicitly state what bank holidays must be taken, employers can enforce annual leave provided they give a notice period at least double the number of leave days the employee is expected to take.

In-depth guidance on employment contracts and holiday entitlement in the passenger transport industry is available as part of a subscription to Transport-inform and free access to Transport-inform Lite is available to routeone members.