The Kings Coronation: An Additional Bank Holiday
The Government has announced that Monday 8 May 2023 will be a bank holiday across the whole of the United Kingdom, to mark the coronation of His Majesty King Charles III which will take place on Saturday 6 May 2023. The bank holiday is intended to give families and communities the chance to celebrate and welcome His Majesty to the throne.
There’s no automatic legal right for most staff to take bank or public holidays off work, so you’ll need to check their employment contracts to see if they’re entitled to the day off. We’ve set out a refresher below on how to check whether your staff are entitled to this day off and/or how to treat your staff fairly when deciding whether to give them the day off anyway.
There’s no automatic entitlement for bank or public holidays off work
There is no automatic legal entitlement for your staff to take bank or public holidays off work. The only exception to this is that some banking sector workers do automatically get bank holidays off.
However, you should respond sensitively to requests from your staff members to take the day off work, and you’ll need to make sure you check what their employment contract entitles them to.
Check your staff members’ employment contract
These are some likely scenarios that could be included in their employment contract:
1. Their contract says they are entitled to a certain number of days annual leave, in addition to all bank and public holidays
Staff are entitled to take the extra bank holiday off in this scenario.
2. Their contract says they are entitled to a certain number of days annual leave, inclusive of bank and public holidays
In this scenario, it will be up to you whether you allow them to take the extra day off, as their contract does not explicitly entitle them to it.
3. Their contract says they are entitled to the normal bank and public holidays as annual leave
As the extra bank holiday is not one of the ‘normal’ eight bank and public holidays in England and Wales, it will be up to you whether you allow your staff members to take it.
In scenarios 2 and 3, if you decide that you need your staff to work through the bank holiday, you should explain why and communicate your position with them as early as possible. Allowing an early finish or half day on the day of the coronation could also help boost their morale. If you decide to allow your staff to take the day off as holiday even though they aren’t contractually entitled to it, you should make it clear that this is a one-off gesture of goodwill.
Do I have to pay staff extra to work on a bank holiday?
If your staff are working on this bank holiday, they’ll only be entitled to be paid extra, or take an additional day’s holiday another day, if their contract says so. If you decide to pay them extra, or give them an additional day’s holiday another day, you should make it clear to them that this is a one-off gesture.
Make sure you treat part-time staff fairly
If your staff aren’t contracted to an extra bank holiday off, but you decide to give it to them anyway, make sure you consider the implications for part-time staff. You must make sure that you do not treat part-time staff less favourably than full-time staff, or you could face discrimination claims. This means that if the bank holiday falls on one of a part-time staff member’s usual non-working days, you must adjust their holiday allowance on a pro rata basis so they don’t miss out on the extra leave.
Calculating Holiday Pay for Part-Time Workers
In Harpur Trust v Brazel, the Supreme Court had to decide on the correct method of calculating holiday entitlement and pay for workers who work for varying hours during only certain weeks of the year but who have a contract throughout that year. The issue was whether their entitlement should be calculated on the same principle as full-time employees or whether their leave should be calculated by ignoring those weeks.
While this case specifically relates to a term time working arrangement, it could also be relevant to zero-hour contracts or other atypical working arrangements in which a worker only works for part of the normal working year.
A part-time worker’s annual leave must be calculated as 5.6 weeks, in the same way as everyone else. Calculating holiday pay based on 12.07% of annual earnings is incorrect and should no longer be used.
Employers need to check if they have any atypical workers whose holiday pay is being calculated on the basis of 12.07% of pay multiplied by 5.6 weeks or via another method that results in them having a pro-rata entitlement. If so, they will need to change how they calculate their holiday pay.
Employers should review the arrangements of term time workers who work normal hours when they are at work and check that their holiday entitlement and pay are being calculated correctly.
The decision by the Supreme Court is likely to affect many employers in the education sector but will also be relevant to other organisations that have employees working on a term-time-only basis.
Managing public holiday entitlement for part-time workers
Employers must ensure that workers receive at least the statutory minimum annual leave entitlement. If an employer is paying full-time staff not to work a public holiday, then part-time staff should be entitled to a pro-rated holiday entitlement to avoid any claims of less favourable treatment.
Example
An employee works three days a week, Tuesday to Thursday. The employee should be given a pro-rata entitlement to public holidays as part of their annual leave entitlement but can take their annual leave when they choose since very few public holidays will fall on their working days.
Employers often prefer to calculate pro-rated annual leave and public holidays based on hours rather than days when looking at different working patterns.
April 2022 Employment Law Changes
There are several changes in employment law taking place in April. Read our blog for a summary of the key changes.
Minimum Wage
From 1 April 2022, the national minimum wage increased. The new rates are:
- National living wage (23+): £9.50 per hour
- Adult rate (21-22): £9.18 per hour
- Development rate (18-20): £6.83 per hour
- Youth rate (16-17): £4.81 per hour
- Apprentice rate (under 19 or in the first year): £4.81 per hour
- Accommodation offset: £8.70 per day
Employers will need to ensure they are paying in line with these new rates from April 1st going forward.
Statutory Payments
Statutory payments also rose in April. Statutory sick pay increased to £99.35 per week from April 6th, 2022, and statutory maternity, paternity, adoption, shared parental, and parental bereavement pay all went up to £156.66 per week with effect from the 3rd of April 2022.
Covid-19
From the 1st of April 2022, new public health guidance was provided. Anyone with a positive Covid-19 test result is advised to try to stay at home and avoid contact with other people for five days after the day they took the test. Anyone with symptoms is advised to try to stay at home and avoid contact with others until they stop displaying symptoms.
Free tests were withdrawn from April 1st and instead, lateral flow tests can be bought from retailers for around £2 per test.
Most employers will no longer have to consider COVID-19 in their risk assessments from April 1st.
PPE to be provided to workers
From the 6th of April 2022, the Personal Protective Equipment at Work (Amendment) Regulations 2022 came into force and amended the 1992 Regulations. Under the new rules, employers will be required to provide suitable free personal protective equipment to workers as well as employees where there is a health and safety risk. If PPE is required, employers must ensure their workers have sufficient information, instruction, and training on the use of PPE.
April looks like to be a busy month with plenty of changes and things to be aware of for employers.
Related Articles:
Living with Covid-19: The Latest News for Employers
Proposed Family Leave Changes for 2022
Pay in Lieu of Notice (PILON) – Do you need to review your employment contracts?
Changes to the way in which termination payments are taxed came into force from 6 April 2018.
From 6 April all notice pay is to be treated as earnings and subject to tax and national insurance contributions – irrespective of whether or not there is a pay in lieu of notice clause (PILON) in the employment contract, this effectively removes the distinction between contractual and non-contractual PILON.
As a matter of best practice, we would certainly recommend that going forward all employment contracts contain a PILON clause.
In fact, in light of these recent changes, not having a PILON clause now will only leave you at a disadvantage. If you were to process a payment in lieu of notice without a contractual right to do so it could leave you at risk of not being able to rely on any post-termination restrictions such as non-competition clauses and confidentiality. Processing a PILON without a contractual right to do so would be considered a breach of contract. This is because you would be in breach of contract by making the payment and would therefore result in you not being able to rely on any of the other contractual clauses.
Contracts of employment created in Bright Contracts will contain a PILON clause by default.
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National minimum wage to increase on 1st April 2018
The Low Pay Commission’s Autumn 2017 report has been published and on the 1st April 2018, the minimum wage will increase again.
The National Minimum Wage (NMW) is the minimum pay per hour most employees are entitled to by law. An employee's age and if they are an apprentice will determine the rate they will receive.
| Rates from 1 April 2017 are: | Rates from 1 April 2018 will be: | |
| 25 yrs old and over | £7.50 per hour | £7.83 per hour |
| 21-24 yrs old | £7.05 per hour | £7.38 per hour |
| 18-20 yrs old | £5.60 per hour | £5.90 per hour |
| 16-17 yrs old | £4.05 per hour | £4.20 per hour |
| Apprentices under 19 or 19 or over who are in the first year of apprenticeship | £3.50 per hour | £3.70 per hour |
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Christmas Bank Holiday Entitlements
There are three public holidays coming over the festive season – Christmas Day, Boxing Day and New Year’s Day. Although many offices across the country will close during this period it can be one of the busiest times of the year for industries including retail, hospitality, and hair and beauty. So what public holiday entitlement are employees entitled to over this time?
Bank holiday entitlement
Employers do not have to give employees paid leave on bank holidays. Any right to time off, payment for time off or extra pay for bank holidays worked depends on the terms of the employee's contract of employment. Therefore employees may be required to work on bank holidays. Employers may choose to include bank holidays as part of a worker’s statutory annual leave.
Holiday leave entitlement
Employees’ holiday rights start on the first day of their employment.
Under the Working Time Regulations 1998, workers (including most agency and freelance workers) have the right to:
• 5.6 Weeks’ paid leave each year, this equates to 28 days for full-time employees
Part-time employees
Part-time employees are entitled to the same holidays as full-time workers, calculated on a pro-rata basis. For example:
• 5.6 x 5 working days = 28 days
• 5.6 x 4 working days = 22.4 days
• 5.6 x 3 working days = 16.8 days
Irregular hours
Annual leave for irregular workers is best calculated as a percentage using 12.07% of days worked.
Limits on statutory leave
Statutory leave is capped at 28 days per year. If an employee works 6 days per week their statutory entitlement is 28 days, not 33.6 (6 multiply by 5.6)
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National Minimum Wage (NMW) in the news again
A junior minister has revealed that shortfalls in national minimum wage (NMW) payments hit a record £10.9m in 2016, affecting up to 100,000 employees.
Some of the country’s well-known retailers were caught out by failing to pay staff correct wage rates, including John Lewis & Tesco. Tesco stated that it had paid their staff less than the NMW when a new payroll system was introduced, leaving 140,000 of its employee’s being short-changed nearly £10m between them. John Lewis also blamed a payroll error when it was discovered they had breached the NMW laws to the tune of £36m.
Charles Cotton, performance and reward advisor at the CIPD said there were various reasons for shortfalls in payments from employers – “…employers may be ignoring the law and exploiting their workers…another is that the employer doesn’t fully understand the legal requirements…so it is important that employers are aware of the rules.”
This is not the first time NMW underpayments have been brought to light this year, we recently posted a blog on the government's name and shame scheme where 233 employers had to pay back £2m to underpaid workers. And also the release of a recent survey by the Dept. for Business, Energy and Industrial Strategy (BEIS) indicated that 1 in 5 apprentices have not been receiving the mandatory minimum wage. The survey discovered that the number of apprentices receiving less than the NMW they are entitled to rose sharply from 13% for those aged 16-18 to 32% for those aged 19-20.
Underpayments occurring since April 2016 have been subject to a penalty of 200% of the value of the underpaid amount – capped at £20,000 but this does not seem to have had the desired effect of discouraging employers from breaching the rules.
It is extremely important that organisations pay the wage rates that they are legally obliged to. Employers that are found to be deliberately flouting the law should also be prosecuted, so that good companies aren’t undermined by bad ones.
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The importance of having an Absence/Sick Leave Policy
As an employer, it can be quite a daunting prospect having to deal with sick leave and long-term sick leave can throw up other issues making it seem more complicated and even more daunting for the employer to deal with effectively. So how can an employer ensure compliance during these periods of absence?
First and foremost an Absence/Sick Leave Policy needs to be put in place. It must contain clear and concise guidelines for the employee and employer to follow in cases of absence
Your Absence Policy should include:
1. Details of any company Sick Pay Policy:
- If an employer will/will not pay employee while on certified/uncertified sick leave.
- If payments are to be made, length of term for payments.
2. Notification and certification requirements if employees are absent due to illness:
- How much notice an employee needs to give an employer if they will be absent from work.
- After how many days of absence a medical certificate is required.
- For long-term absences, how often a medical certificate is required to be presented to the employer.
3. A statement that in the case of long-term absence due to illness, the employee may be required to attend a company GP or other nominated medical persons/facilities at the request of the employer.
It would also be advisable to include details on what is classed as being short-term, long-term and unauthorised absences - Unauthorised leave is absence by the employee without consent or approval from management or without proof of illness by means of a doctors certificate and should be dealt with as a matter of misconduct via the company disciplinary procedures.
As with most company policies and procedures, once in place, the employees will be aware of what is expected of them during times of absence or sick leave; this, in turn, should eliminate any further issues from arising.
Bright Contracts has a comprehensive Absence and Sick Leave Policy built into the Company Handbook which can be customised to suit your own company specifications and requirements.
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233 employers to pay back £2 million to underpaid workers
233 employers have been ordered to pay back almost £2 million to 13,000 of the UK’s lowest paid workers, as part of the Government’s scheme to name and shame employers who fail to pay the National Minimum Wage and Living Wage.
A list that identifies these employers has been published by The Department for Business, Energy and Industrial Strategy. As well as paying back the money owed, employers on the list have also been fined £1.9 million by the Government.
The sectors that featured frequently on the list included:
• Hair and Beauty: approximately 60 employers, in arrears of £121,000 for circa 200 workers
• Hospitality: approximately 50 employers, in arrears of £77,000 for circa 220 workers
• Retail: approximately 20 employers, in arrears of £1.5m for circa 12,200 workers
Employers in this round fell short by failing to pay workers overtime hours, deducting money from wages to pay for uniforms and wrongfully paying apprentice rates to workers.
Business Minister Margot James said:
“It is against the law to pay workers less than legal minimum wage rates, short-changing ordinary working people and undercutting honest employers. Today’s naming round identifies a record £2 million of back pay for workers and sends the clear message to employers that the government will come down hard on those who break the law.”
This is the 12th round of Government naming and shaming with so far £6 million recovered for 40,000 workers with 1,200 employers being fined £4 million. Employers need to be aware of the National Minimum and National Wage and Apprentice rates. Employers who fail to comply with these rates could face substantial fines and risk their business being named and shamed. To view the current rates click here.
To view the full list click here.
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Employers must now include voluntary overtime when calculating holiday pay
A landmark legal victory for Unite union means that employers must now include normal voluntary overtime when they are calculating holiday pay. The ruling is of major significance to workers who receive payments for working voluntary overtime but these payments are not reflected in their holiday pay. The union says that the ruling has set a legally binding precedent which employment tribunals across the UK are obliged to follow.
The Case
The case against Dudley Metropolitan Borough Council was brought by 56 council employees who worked on maintaining Dudley’s housing stock as electricians, carpenters, and plumbers. The employees worked regular voluntary overtime, beyond their fixed contractual hours, including Saturdays and they also elected to go on a standby rota every four weeks, to deal with emergency call-outs and repairs. The loss of earnings from holiday pay underpayments varied between £350 and £1,500 a year depending on each worker and how much voluntary overtime they carried out.
The decision by the employment appeal tribunal is the first to confirm that payments for entirely voluntary duties, such as voluntary overtime, standby, call-out work and travel-time linked to that work, should be included in the calculation of workers holiday pay.
Learning Points for Employers
The area of whether overtime should be included in employees holiday pay is a hot topic. This ruling echoes that of Fulton & Baxter v Bear Scotland Ltd when the ET found that overtime and other payments should have been included in the calculation of holiday pay.
Employers who do not pay employees normal voluntary overtime as part of their holiday pay are urged to reconsider this and make a change otherwise they might see themselves in hot water if a case were brought against them.
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