Can I force staff to work a bank holiday?

We have always had a rota for staffing bank holidays to ensure that members of the team work their fair share. But we are struggling to fill the double bank holiday around the Queen’s Jubilee. While we would ideally want team members to volunteer, can we force staff to work on a bank holiday?

The law

There is no automatic statutory right for workers to have time off on a bank holiday. Employers facing this problem must instead consider what their employees’ contractual rights are. This means looking at any express rights set out in a contract of employment or a contractual policy, as well as considering whether employees have any implied rights.

Expert advice

The first step in determining whether staff can be forced to work on a bank holiday is to consider the wording in a contract of employment as this can vary from business to business.

The relevant provision regarding annual leave might say that an employee is entitled to a set amount of holiday, eg, 20 days per annum ‘plus bank holidays’ or plus all public and bank holidays’. If that is the case, then the employee would have a right to time off on bank holidays, including any additional bank holidays, and they cannot be forced to work.

Many contracts specify that employees are entitled to a set amount of holiday, eg, 20 days per annum ‘plus the usual public holidays in England and Wales’ or ‘plus eight bank holidays’. If that is the case, then an employee would not have a contractual right to take an extra day off work for any additional bank holiday. The employee could request to take the day off in the normal way, however the employer is not generally obliged to permit such a request, especially if doing so would leave the business short staffed. Therefore, it’s possible that the employer could require that an employee attend work if the additional bank holiday falls on a normal working day.

Sometimes, the contract might not reference bank holidays at all, but could simply state that workers are entitled to a set amount of holiday (eg 28 days per annum). Again, an employer could then require that a worker attends work on a public holiday if it would otherwise be a normal working day.

The employer’s normal custom and practice in respect of bank holiday working also needs to be considered. If additional time off for ‘extra’ bank holidays, or an enhanced rate of pay for working on a bank holiday has consistently been offered to staff, this may over time and through practice have become an implied contractual entitlement. In such circumstances, failure to adhere to the normal practices could potentially amount to a breach of contract on the part of the employer.

Dealing with reluctance from staff to cover the bank holiday weekend and surrounding dates is something employers should consider carefully. In order to avoid any suggestion of unfairness, advanced planning will be required to ensure the needs of the business are met, especially if the business is likely to need more staff than usual to cover an anticipated busy period over the long weekend.

If employees have an express or implied right to time off on a bank holiday, employers could try to seek agreement from their employees to work on a bank holiday in exchange for having a day off in lieu to be taken on another occasion.

To-do checklist

Before forcing staff to work, employers should:

• Check contractual provisions to determine whether staff are entitled to all bank holidays off work or not.
• If staff can be required to work on bank holidays, manage leave requests for the period fairly and transparently.
• Consider offering staff the ‘extra’ holiday at another point if it cannot be taken on the day.

Beware

Employers also need to be mindful of any part time workers. The contractual provisions regarding annual leave and bank holidays for part-time employees is likely to differ. Employers must remember that part-time workers have the right not to be treated less favourably than full-time workers.

Sinead Kelly is an associate and Rhiannon Thompson is a trainee at Collyer Bristow LLP