Flexible Income By Michael Nadin, Associate Solicitor Many employers now offer flexible benefits packages in…
PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.
We are often asked questions about how best to calculate the holiday entitlement of workers who do not work the “traditional” full-time working pattern of 5 days per week with set hours.
In a series of forthcoming articles we will consider how to approach a variety of common scenarios involving part time staff or workers with irregular hours.
Common difficulties encountered by employers calculating annual leave entitlements for part time workers
Bank and public holidays
Employers operating businesses that close over public holidays often struggle with holiday calculations when such closures fall during days on which part time staff would not normally be at work.
In the case of part time employees who work on Mondays and Fridays there are 5 public holidays each year which will always fall on their working days.
Contrast this with an employee who works Tuesday to Thursday and they will not have a holiday on any of these days.
In these contrasting examples it is important that their respective holiday entitlements are dealt with fairly and equally, so that one employee is not receiving 5 more days’ holiday than the other.
Assuming that the annual holiday entitlement of each employee is 4 weeks plus bank holidays, any employee who does not work Mondays or Fridays will be disadvantaged if they are only permitted paid time off for bank holidays that fall on days when they would normally work. It also risks them receiving less than their minimum statutory annual leave of 5.6 weeks.
There is also a potential issue under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, which entitles part-time workers to be treated equally with comparable full-time colleagues.
The simplest way to achieve equality in this situation is to give part-time workers a pro-rated entitlement to all public holidays. For example, employees who work three full days each week, would be entitled to three-fifths (0.6) of the normal bank holiday entitlement for a full-time employee, which amounts to 4.8 days.
If an employer is going to implement a new system of calculating holiday entitlement then care must be taken if this involves a change to an existing employee’s terms and conditions of employment in relation to holiday. This is unlikely to be a problem if it results in a part time employee receiving a higher entitlement to annual leave (although consent should still be sought).
However if a new calculation method results in an existing part time employee receiving less holiday, then legal advice should be sought even if this action is taken to remove a windfall and promote fairness.
Can an employer make a part-time employee use up part of their holiday entitlement on a bank holiday Monday if they don’t usually work on Mondays?
Case law has found that it is not lawful to make a worker take statutory holiday (being the first 5.6 weeks of annual leave) on a day that they would not otherwise be obliged to work under their contract of employment. This is analogous to the fact that employers cannot force full time workers (who work Monday to Friday) to take their annual leave on a Saturday or Sunday, as they would be off on those days anyway.
Therefore if a business is closed on a public holiday which is not a day on which a particular worker would normally be obliged to attend work then they cannot be forced to take holiday on this date unless the holiday is contractual holiday above and beyond the minimum entitlement in the Working Time Regulations (WTR) 1998.
Forcing a part time employee to take holiday on a day they would not usually work, may also amount to less favourable treatment of a part time worker – which may give rise to an Employment Tribunal claim.