We are deeply saddened with the passing of Her Majesty, Queen Elizabeth II on 8 September 2022.

In light of the funeral taking place for Her Late Majesty, King Charles III has approved a one-off bank holiday to take place on the date of the Late Queen’s state funeral, Monday, 19 September 2022.

Are employees automatically entitled to the additional bank holiday? 

This will depend on the wording of the employee’s contract of employment. It is important to note that employees do not have an automatic right to paid time off on a bank holiday. Employers are advised to check the wording of their employment contracts and communicate with employees about whether or not they will be required to work on the additional bank holiday in line with the terms of their contract.

To help employers navigate this issue, we have set out below the most commonly used phrases relating to bank holidays that we see in employment contracts and what they mean in terms of the employee’s right to have paid time off work on 3 June 2022.

Entitlement to time off on the addition bank holiday in 2022

20 days holiday per annum plus Bank Holidays – employees will have a contractual entitlement to take paid time off on the additional bank holiday as the wording on holiday entitlement in the contract is not limited to the normal/usual bank holidays observed in England and Wales. Therefore, there is a contractual entitlement to paid time off on all bank holidays – including bank holidays which are in addition to those normally observed.

28 days holiday per annum – where the contract is silent on bank holidays, the employee has the ability to book using their 28-day holiday allowance any of the bank holidays, including the additional bank holiday. However, there is no increase in holiday entitlement as a result of the additional bank holiday.

20 days holiday per annum plus 8 bank/public holidays – similar to above, the contract is silent on which bank holidays are included within the employee’s holiday entitlement and therefore an employee has the ability to book the additional bank holiday as paid time off in June 2022. This will, however, mean that the employee will not be entitled to one of the later bank holidays in the year. We would recommend this is clarified to the employee at the time of booking annual leave.

20 days holiday per annum plus New Year’s Day, Good Friday, Easter Monday, Early May Bank Holiday, Spring Bank Holiday, Summer Bank Holiday, Christmas Day and Boxing Day – where there is a list of bank holidays contained within the contract, the employee will only be entitled to receive paid time off on those bank holidays listed (whether this list is some or all of those usually observed in England and Wales). Employees with such wording in their contract will not be automatically entitled to paid time off on 19 September 2022.

20 days holiday per annum plus the usual bank/public holidays observed in England and Wales – as the additional bank holiday is not usually observed in England and Wales, employees would not be entitled to take paid time off on the additional bank holiday.

20 days holiday per annum plus the 8 bank/public holidays usually observed in England and Wales – as above, the bank holidays which are included within holiday entitlement are listed and therefore there is no entitlement to the additional bank holiday.

Even where there is no contractual entitlement to take the additional bank holiday as paid time off, many employers, as a mark of respect for the passing of HM Queen Elizabeth and as a gesture of goodwill for all staff, will decide to allow their employees to take the additional bank holiday or if that is not possible for business reasons, to provide time off in lieu.

If there is no contractual right to the extra Bank Holiday, an employer can decide to close on Monday, 19 September 2022, without giving an extra days’ holiday. Notice should be given as soon as possible that they must save a day of their yearly entitlement to cover the closure for the Bank Holiday. This may be very difficult for employers to conduct, especially as their holiday year end may finish at the end of December, with employees already booking their final days off. As stated above, an employer should think about employee’s expectations and how such a decision may affect employee relations. Difficulties will obviously arise where employees have already used their entitlement for the year.

It is advisable and would be good practice for employers to forewarn their employees of their entitlement (or not) of the extra Bank Holiday.

Previous approach to time off for additional bank holidays

We previously enjoyed an additional Bank Holiday on Friday, 3 June 2022 to mark the Queen’s Platinum Jubilee. Therefore, when considering whether to allow employees paid time off for this additional bank holiday, we would recommend that you consider what has been done previously. To the extent employees have previously been offered paid time-off or time-off in lieu to mark an additional bank holiday, to adopt a different approach in respect of the Platinum Jubilee additional bank holiday may cause a negative reaction from employees (in particular those with long enough service to have been working when this happened previously).

For advice and assistance in relation to the contents of this blog or any other employment/HR related query, please contact Sarah Collier, Partner & Head of Employment Law.