To celebrate the Queen’s Platinum Jubilee, the UK government has announced an additional bank holiday in 2022.
The May bank holiday weekend will be moved to Thursday June 2 and an additional bank holiday on Friday June 3 will allow many people to enjoy a four-day weekend. Most schools and colleges have their midterm break during the week beginning Monday, May 30, and many of their employees will already be off work.
We’ve started receiving a number of questions about this and have answered FAQs to help you navigate this surprisingly difficult issue.
Do staff have the right to add this extra day to their contractual leave?
Usually the starting point is to look at the vacation clause in the employee’s employment contract. If the contract stipulates that the employee’s vacation pay includes all holidays and public holidays, you are not obliged to grant him additional paid vacation days. The same applies if the contract only specifies the number of vacation days they can take and does not mention public holidays at all. Conversely, if the contract states that he is entitled to x paid vacation days plus holidays and bank holidays, you will need to allow him to take an extra day off this year.
The situation with many teaching contracts is more complex. 2021 Schools Teacher Pay and Conditions Document has been updated to reflect the additional holiday. It specifies that full-time teachers must be available to work 194 days in the 2021/22 school year, instead of the usual 195 days.
Teachers subject to the STPCD must therefore benefit from an additional day off. You can prorate this extra day for part-time staff. However, the situation regarding temporary staff is more complicated (see below).
In addition, anyone whose employment is subject to the Green Book, is entitled to an additional day off with pay to take into account the additional public holiday (prorated for part-time employees).
If some of your staff are subject to STPCD or Green Book conditions and others are not, you will need to consider whether to adopt a uniform policy for all of your staff to avoid resentment, grievances and, possibly, complaints (see below).
Do we have discretion as to when staff take these extra vacation days?
This depends on the contractual wording agreed between you and your staff. If their contract says they are entitled to take holidays, you must allow them to take the June 3 holiday (unless there is a provision in the contract that allows you to postpone the holiday under certain circumstances).
However, many schools and colleges will already be on vacation on June 2/3 and do not refer to the holidays in their contracts. Thus, you will need to allow staff to take an additional vacation day at another time during the vacation year. Teachers subject to the STPCD 2021 must be authorized to take their additional days off during school terms.
The DfE guidance states that:
“Many schools will already be on half-term vacation in the week starting May 31, but when the extra public holiday falls during term time, schools and local authorities must observe public holidays on June 2/3 and may therefore need to prepare and make any changes to their published term dates for the 2021/22 academic year.
The explanatory notes to the change in legislation (which applies to local government public schools) provides that the minimum number of sessions that must be held in the 2021/22 school year is reduced from 380 to 378 to allow schools to ‘closed for the additional public holiday’.
Schools and colleges that are already closed on June 2/3 can identify another closing day or “holiday” elsewhere in the year so that staff and students can benefit from the extra day of vacation. Schools and colleges not covered by the amending legislation have more leeway and could allow their staff to take their extra holiday day on different days/months to avoid having to close completely.
If you recognize a union, you will need to agree your approach with them.
Can we just pay the staff instead of taking the extra holiday?
Under the Working Time Regulations 1998, employers can only pay an employee for vacation they have not taken when they leave. However, this restriction only affects 5.6-week holidays. If you pay your staff extra contractual time off, you may be able to pay them extra for not taking the extra day. But they have to agree, and you’ll need to check their contracts to make sure you’re not violating any other relevant terms (such as STPCD).
Should fixed-term staff only be granted additional paid days off?
The association of local authorities has published a flyer on the queen’s platinum jubilee 2022 which provides additional guidance for fixed-term employees engaged solely under the Green Book.
Part 4.12 of the Green Book, paragraph 13.2, provides: “If the government announces one or more additional public holidays, a TTO employee’s salary should reflect the additional public holiday or an additional period of paid leave during the school term could be granted.”
The LGA Circular examines two scenarios:
1. In the event of a reduction in the working year
The vast majority of fixed-term employees are hired to work 190 or 195 days a year. This will be reduced to 189 days or 194 days respectively. He suggests that one approach to providing the additional public holiday entitlement is to not adjust their pay (even if they work one day less), which will provide them with paid time off for the public holiday.
2. When there is no reduction in the working year
Where a term employee’s work pattern means that they always work the full number of days/hours they are committed to work annually, they should be paid on a pro-rated basis to reflect the additional holiday.
If the Green Paper does not apply, you will need to review the contracts of your fixed-term staff only. As the law currently stands*, all fixed-term staff must benefit from a minimum of 5.6 weeks of paid leave (28 days for those working five days a week). If it says it includes all public holidays and statutory holidays, you may not have to pay them for the extra holiday. However, if you offer your full-time employees additional paid leave that you do not grant your fixed-term employees (on a pro rata basis), you risk violating the law on part-time workers (prevention of less favorable Salary Regulations) 2001. The employee will be required to identify a real comparator who performs work which is “substantially similar”. There is not much case law on these regulations (and none that relate to teachers), so please seek advice if you are unsure.
* Brazel v Harpur Trust was appealed to the Supreme Court which heard legal arguments earlier this month. We expect the judgment to be released in the new year.
Jenny Arrowsmith is an Employment Partner at Irwin Mitchell
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