Ask the expert

I run an attraction in Cornwall and have been told that under new legislation I’m not allowed to pay my full time staff double-time to work on bank holidays. Instead, I’m told that I can offer them another day off in lieu. Therefore their preference is to take off the bank holiday which I can't offer, as it’s one of the busiest times of the year. Can you advise?

Answered by our Expert: Simon Sanger-Anderson - Tozers Solicitors

Published: 24th April 2009 

The tourism business in Cornwall will be relieved to know that the information they have received is incorrect.

The legislation referred to is likely to be the Working Time (Amendment) Regulations 2007 which have increased annual leave entitlement from 4 weeks to 5.6 weeks. This has been introduced in two stages as you may be aware, the second increase of 0.8 weeks taking effect from 1 April this year.
 
The law now provides that all workers are entitled to 5.6 weeks (equating to 28 days for those who work a five day week) annual leave. Payment may not be made in lieu of annual leave except on termination of employment or under a limited exception for the additional 1.6 weeks during the transitional period whilst it is phased in.
 
However, coming to the point of the concern, there is no statutory entitlement to take Bank Holidays and Pubic Holidays as holiday. Bank and Public holidays can, but do not have to, form part of the 5.6 weeks statutory entitlement. It is open to the employer to require workers to work on bank holidays provided that the employee is permitted to take their full entitlement of 5.6 weeks at other times.

Furthermore, there is nothing preventing employers from choosing to pay employees who work a bank holiday a premium rate, provided of course they still give the full 5.6 weeks paid annual leave in addition. It would be unlawful to pay double time on a bank holiday and require that the employee takes one of their 5.6 days of annual leave as unpaid leave in return. Equally it would be perfectly lawful to only pay the normal hourly rate for Bank Holidays, if that were a condition of the employee's contract and certainly that is something we always advise our tourism business clients to do.
 
Therefore, the tourism business would be able to pay their staff double time and require them to work bank holidays provided the day off in lieu is paid at the employee's normal rate.

If tourism businesses would like to discuss this particular issue in more detail please contact Tozers Solicitors:

Simon Sanger-Anderson
Tel: 01392 209 595