Top 10 Bank Holiday Queries – What You Can and Can’t Do . . .

Bank Holidays . . . a topic that is always coming up in our HR Advice Centre and causes no end of headaches for both HR and Managers. So here are the top ten issues:

1. What do you do if staff pull a sickie the day before or the day after a bank holiday (that they are not working)?

Treat it just as you would any other sickness absence unless you have evidence that this is a clear pattern of behaviour. It could be genuine sickness absence though so don’t assume it’s not! Have a return to work meeting with the individual when they return to work. You can ask them to get a Fit Note from their GP if you think that would be of value (provided you are willing to pay for it, as it is under the 8-day requirement).

If the individual has a poor absence record, or you have reasonable grounds to treat the absence with suspicion, then you can have a conversation with the individual about your suspicions and deal with it as a disciplinary matter if that is appropriate and there is sufficient evidence to do so.

2. What do you do if staff pull a sickie when they are supposed to be working on a bank holiday?

Again, treat it just as you would any other sickness absence – it could be genuine sickness absence. Have a return to work meeting with the individual when they return to work. You can ask them to get a Fit Note from their GP (provided you are willing to pay for it, as it is under the 8 day requirement).
If you have reasonable grounds to treat the absence with suspicion, then you can have a conversation with the individual about your suspicions and deal with it as a disciplinary matter if appropriate and there is sufficient evidence to do so. Here are a few scenarios that might give you ‘reasonable grounds to believe’:

  • Spotted by a colleague on the beach – 3rd party anecdote with no written evidence – sufficient to investigate on grounds of misconduct, but be cautious.
  • Told a colleague they were planning to do that – as above
  • Manager saw a pic on Facebook suggesting he/she didn’t look ill – dangerous evidence as you won’t always be fully clear on when picture was taken (this is Facebook after all which is where people brag, lie and distort the truth all the time)
  • Employee refuses to answer questions about his/her illness – caution advised, but it is a requirement that employees provide you with the information you require and deliberately withholding information is potentially misconduct.

3. Are you calculating bank holidays right for your part time staff?

This is an endless source of confusion for employees, HR and payroll! In simple terms, part-time holidays should be calculated pro-rata the full time equivalent rate. I.e. if full time staff work 37.5 hours per week and get 25 days plus 8 days bank holidays (33 days in total) then a part timer working 20 hours per week (equates to 53.3% full time hours) would be entitled to 53.3% of the 33 days. In other words, 17.6 days or 132 hours – including bank holidays taken.

4. What happens if your part time member of staff doesn’t work on the day a bank holiday falls?

Nothing – it is the same as any other non-working day for them, so you do not need to deduct from their holiday allowance.

5. Are bank holidays part of statutory entitlement?

Statutory entitlement in the UK is 28 days (or pro-rata for someone working part time). An employer can choose to include bank holidays as part of a worker’s statutory annual leave. Bank or public holidays do not have to be given as paid leave.

6. Do staff employed outside the UK still get entitlement to a day off on UK bank holidays?

This depends on their contract of employment, and the agreement with them. You should have it agreed that they either get local bank holidays, or UK bank holidays but an employee cannot be on less favourable terms than your UK entitlement – what you don’t want is for them to cherry pick the two. If it’s not in their contract then perhaps it’s time to review their contract so these things are really clear to all parties.

7. If staff return with a hangover (or similar) after a bank holiday, do you have to allow them to work?

If a member of staff is not fit for work, you are entitled to send them home (whatever day it is). However, be aware that if you send someone home then they should be paid in accordance with your sickness policy.

8. If staff phone in sick the day after a bank holiday, can you withhold sick pay?

Staff only qualify for SSP after 3 days’ absence (these are known as ‘waiting days’) so usually paying SSP is not an issue. Paying company sick pay though will be dependent on their contract of employment. The contract should indicate whether you pay anything in the first 3 days of absence or if that period is unpaid. Your contract should also be clear on the grounds, if any, you have for withholding of company sick pay.

9. What do you do if different offices have different bank holidays (e.g. Scotland and England)?

The office employees all take bank holidays according to their contractual entitlement. Normally this will be in line with local entitlement, however some Companies match bank holidays across the whole organisation. Why not review your documents and see if you want local arrangements or company wide arrangements?

10. Do you have to pay basic pay plus overtime that would normally have been earned if your employee has a bank holiday?

No. You need to pay basic pay only unless the contract of employment states otherwise.

And finally …

Will you have to give staff paid time off if we get a special bank holiday on Brexit day in 2019?

This depends on the wording of your contract of employment. If the contract states that the holiday entitlement “includes statutory bank holidays” then you will have to give staff time off for any extra bank holidays. However, if it states that it is their leave entitlement “plus 8 days bank holidays” then you do not have to give them the additional bank holiday day. However, in the past Companies have generally allowed staff to use annual leave for this additional day instead.

Interested in template HR letters or documents to manage sickness absence, holiday or disciplinary issues? Check out our website www.docswizard.co.uk  Unsure how to respond to or manage your employee? Call our team on 01425 479888.

The information contained within this article is for general guidance only and represents our understanding of employment and associated law and employee relations issues as at the date of publication. Jaluch Limited, or any of its directors or employees, cannot be held responsible for any action or inaction taken in reliance upon the contents. Specific advice should be sought on all individual matters.

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