· 2 min read · Features

Flurry of bank holidays spells bad news for employers, lawyers warn

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The flurry of bank holidays this year may be excellent news for employees, but they could pose difficult problems for employers, according to law firm Dickinson Dees.

Claire-Jane Nicol (pictured), an employment law specialist at Dickinson Dees based in Newcastle, warned, according to the Government, the estimated cost to the British economy of the additional bank holiday is about £2.9 billion.

Nicol said: "Not only are we having an additional public holiday this year but there will also be an extra day in 2012 to mark the Queen's Diamond Jubilee. This will be on 5 June, and the May Bank Holiday will be put back to 4 June, to give the nation an extra long weekend.

"This is great news for employees, but what about employers? There are a number of issues which they will have to consider."

These include: Do they have to give the additional bank holiday? What if they don't give it and employees take unauthorised absences? And what if an employee has been unwell during their holiday?

Nicol said: "In terms of entitlement to the additional bank holiday, the answer depends on what is written in employees' terms and conditions. Not all employees are automatically entitled to the additional bank holiday - in fact employees are not automatically entitled to paid leave on any bank holiday - but some employers choose to allow paid leave on bank holidays.

"In relation to the additional bank holiday, employers may require employees to take the day as holiday out of their existing entitlement, or they may require staff cover over the bank holiday, depending on what their contracts say," she said.

"However, if an employer's terms and conditions do give automatic entitlement to the additional bank holiday, they could face the vast majority of staff putting in holiday requests for three days and then disappearing for the best part of a fortnight! At the other end of the spectrum, some employers have taken a hard line and declared the additional bank holiday as discretionary, which could lead to unrest amongst the workforce," she added.

Employers are legally obliged to allow employees the minimum annual leave entitlement set out in the Working Time Regulations 1998, which is currently 28 days for a full-time worker, but it's up to them whether this includes bank holidays or is additional to them.

Nicol added: "So what happens if an employee has been unwell during the holiday? Currently some European cases have stated that employees who have been unwell during their holiday should be allowed to reschedule their 'lost' holiday even if this means taking it in a different holiday year. However it remains to be seen whether this will be accepted by the UK courts.

"What if an employee hasn't been entitled to the additional bank holiday but took it anyway as unauthorised absence? Clearly an employee who takes unauthorised absence will be acting in breach of their contract of employment and an employer will want to consider taking disciplinary action.

"Employers would do well to have a policy in place dealing with the consequences of failing to obtain authorisation for holidays, or failing to report sickness if taking a sick day. Advice should be sought and all of the circumstances considered.

"So, overall, whilst the forthcoming flurry of bank holidays may be great news for employees, they could well prove to be major headaches for employers, unless they do their homework and prepare for all eventualities."