Calculation of public holidays for part-time and compressed-hour workers

With the next August bank holiday on the horizon, we are looking at what can be a complicated area of ​​calculating bank holiday entitlement for people who work part-time and/or compressed hours.

Under the Working Time Directive (WTD), which is now retained in EU law, a worker is entitled to a minimum of 4 weeks annual leave (or 20 days for a full-time worker) .

The Working Time Regulations 1998 (WTR), which implement the WTD into UK law, provide for an additional 1.6 weeks of annual leave (or 8 days for a full-time worker), representing observed public holidays in England and Wales each year.

In total, a full-time worker is therefore entitled to 5.6 weeks of leave per year of leave, but there is no legal right to leave, paid or unpaid, on a public holiday.

The right to paid leave on a public holiday will ultimately be governed by the employment contract. Traditionally, employers give full-time workers 20 days plus the 8 public holidays recognized in England and Wales as holiday entitlement for each year of leave.

The situation regarding leave entitlement is relatively clear for full-time workers. However, in light of the changing way the workforce operates today, many employers are faced with workers working part-time or compressed hours.

Part-time and/or compressed workers who do not work on a public holiday run the risk of receiving proportionally fewer days of annual leave than a full-time worker. The question then arises as to how the right to leave is calculated for those who follow these work patterns?

Management of the right to public holidays for part-time workers

Employers must ensure that workers receive at least the legal minimum entitlement to annual leave. The WTR does not address the issue of whether an employer should provide compensatory time off for missed holidays. It is however true that those working part-time should not be treated less favorably than a comparable full-time worker under the Part-Time Workers (Prevention of Less Favorable Treatment) Regulations 2000, at ​​unless such processing can be objectively justified. If an employer pays full-time staff not to work on a public holiday, part-time staff should be entitled to a pro-rated public holiday entitlement to avoid any claim for less favorable treatment.

Government guidance on the pro-rata allocation of public holidays previously applied a generous interpretation. For example, a worker who works 3 days a week would receive 3/5 of 8 days, i.e. 4.8 days, added to his entitlement to ordinary leave which is then allocated to taking leave on public holidays, so that employers provide sufficient annual statutory holiday leave to avoid the need to use ordinary statutory holidays (under the WTD) on such days. This appears to stem from an overly cautious stance to avoid any perceived less favorable treatment arising from part-time status.

However, questions often arise when there are part-time staff who work two days a week but not on a Monday or Friday versus another part-time worker whose work pattern includes those days.

Examples:

  1. Worker A works three days a week, Tuesday through Thursday. Worker A should have a pro rata entitlement to public holidays as part of his annual leave entitlement, but can take his annual leave whenever he wishes as very few public holidays will fall on his working days.
  2. Worker B works two days a week on Monday and Friday. Worker B should also have a pro rata entitlement to public holidays as part of his annual leave entitlement, but will have to deduct annual leave for any public holiday falling on a Monday and Friday from his annual leave entitlement.
  3. Worker C submits a formal request for flexible working, changing his work schedule so that he does not work on Wednesdays. Worker C has changed to working four days a week and is therefore entitled to 80% of the normal annual leave and statutory holiday allotment. Worker C may be required to use part of their normal annual leave to cover all public holidays, as pro-rating may not be sufficient depending on which days certain public holidays fall in a given year.

Employers often prefer to prorate annual leave and holidays based on hours rather than days when looking at different work models. Under this approach, a full-time worker (working a 5-day, 37.5-hour week) would be entitled to 60 hours off for the 8 recognized public holidays in England and Wales. A part-time worker, working 3 days a week for 22.5 hours would be entitled to prorated public holiday pay of 36 hours calculated by 22.5 / 37.5 x 60.

Compressed hour workers

When workers work a fixed number of hours each week but not the same number of hours each day, the law does not specify exactly how to integrate the minimum right to statutory holidays. Compressed workers will still be entitled to 5.6 weeks of leave per year of leave. Although a compressed worker is not part-time, as they can work full-time, employers often take the same approach as part-time workers to calculate vacation entitlement based on hours.

Example:

A compressed hour worker works 37.5 hours a week over four days instead of five. Their annual vacation entitlement would be calculated as follows: 37.5 x 5.6 weeks = 210 hours of vacation. Based on the worker’s compressed hours of 9 hours a day, one day of annual leave will be deducted at 9 hours from his total leave entitlement. At first glance, this employee might suggest that such a calculation does not give him 28 days of annual leave – he would be right. The important point to understand is that the legislation provides for 5.6 weeks leave and makes no reference to how many days this equates to – the calculation of days is something that is done in the workplace for convenience . By pushing this example to the end, if the employer were to allocate 28 full days of leave, the individual, who works only 4 days a week within the framework of his compressed working hours contract, would benefit from 7 weeks of leave. paid.

What can employers do?

Employers should allow part-time/compressed hour workers to book their public holiday entitlement pro-rata as annual leave as part of their normal procedures. If a worker has to work on a public holiday, they should book it as their normal day off. If a business is closed on a public holiday, an employer could require the worker to take annual leave if they have to work that day by including it in their contract or giving proper notice. If a worker does not normally work on a Monday or Friday, then they can choose to take their holiday entitlement at another time during the holiday year.

In order to ensure a consistent and fair approach and to avoid any claims for less favorable treatment, employers should adopt a clear policy and/or guidance for workers on how they deal with public holiday entitlement for part-time workers. partiel. Employers may also wish to review their current contractual arrangements regarding leave entitlements for all types of staff within their workforce.

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