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 2 June and an additional bank holiday on Friday 3 June will give many people the opportunity to take a four-day weekend. Most schools and colleges have their half-term break during the week commencing Monday 30 May and many of their staff will already be off work.
We've started to receive a number of queries about this and have complied answers to FAQ's to help you navigate this, surprisingly difficult, issue.
Are staff entitled to have this extra day added to their contractual holiday entitlement?
Ordinarily, the starting point is to look at the holiday clause in the employee's contract of employment. If the contract states that the employee's holiday allowance is, for example, 28 days and this includes all statutory and bank holidays, you aren't obliged to give them an extra days paid holiday. The same will apply if the contract just sets out the number of days holiday they can take and doesn't mention bank holidays at all. Conversely, if the contract states that they are entitled to x days of paid holiday plus statutory and bank holidays, you'll usually have to allow them to take an additional day's leave this year.
The situation regarding many teaching contracts is more complex. The School Teachers Pay and Conditions Document 2021 has been updated to reflect the additional bank holiday. It specifies that full-time teachers must must be available to work 194 days in the 2021/22 academic year, rather than the usual 195 days.
Teachers who are subject to the STPCD must therefore be given an additional days holiday. You can pro-rate this extra day for part-time staff. However, the position regarding term-time staff is more complicated (see below).
In addition, anyone whose employment is subject to the Green Book, is entitled to have an additional day's paid holiday to reflect the additional bank holiday (pro-rata for part-time employees).
If you've got some staff who are subject to STPCD or Green Book conditions and others that aren't, you'll need to think about whether to adopt a uniform policy across your workforce to avoid resentment, grievances and, possibly, claims (see below).
Do we have any discretion about when staff take this extra days holiday?
That depends on the contractual wording agreed between you and your staff. If their contract says they are entitled to take bank holidays off you must allow them to take the 3 June off (unless there is a provision in the contract which allows you to postpone holiday in certain circumstances).
However, many schools and colleges will already be on their half-term breaks on 2/3 June and don't reference bank holidays in their contracts. So, you will need to allow staff to take an additional day's holiday at some other point in the holiday year. Teachers who are subject to the STPCD 2021 must be allowed to take their extra days leave during term-time.
Advice from the DfE states that:
‘Many schools will already be on their half-term breaks in the week commencing 31 May, but where the additional bank holiday falls in term time, schools and local authorities should observe the bank holidays on 2/3 June and may therefore need to prepare and make any amendments to their published term dates for the academic year 2021/22.'
The explanatory notes to the amending legislation (which applies to local authority state schools) states that the minimum number of sessions which must be held in the school year 2021/22 is reduced from 380 to 378 to enable schools to 'close for the additional bank holiday'.
Schools that are already closed on 2/3 June can identify another day of closure or ‘holiday’ elsewhere in the year so that both staff and pupils can benefit from the extra day's holiday. Schools and colleges that aren't covered by the amending legislation have more discretion and could allow their staff to take their additional day's holiday on different days/months to prevent having to completely shut.
If you recognise a union you'll need to agree your approach with them.
Can we just pay staff in lieu of taking the additional bank holiday?
Under the Working Time Regulations 1998, employers can only pay an employee for any holiday they haven't taken when they leave. However, this restriction only relates to statutory holiday of 5.6 weeks. If you pay your staff additional contractual holiday, you may be able to pay them extra for not taking the additional day. But they must agree and you'll need to check their contracts to make sure you are not breaching any other relevant term (such as the STPCD).
Do we have to give term-time only staff an extra days' paid leave?
The local government association has published a circular on the Queen’s Platinum Jubilee 2022 which provides additional guidance for term-time only employees engaged under the Green Book.
The Green Book Part 4.12 Para 13.2 provides: 'If the Government announces an additional public holiday(s), a TTO employee’s pay should reflect the additional public holiday or an additional period of paid leave during term-time could be granted'.
The LGA circular examines two scenarios:
1. Where there is a reduction in the working year
The vast majority of term-time only staff are contracted to work either 190 or 195 days per year. This will be reduced to either 189 days or 194 days respectively. It suggests that one approach to providing the additional bank holiday entitlement is to not adjust their pay (even though they are working one day less) which will provide them with paid leave for the bank holiday.
2. Where there is no reduction in the working year
Where a term-time employee’s working pattern means that they are still working for the full number of days / hours for which they are contracted to work annually, they should be paid a pro-rated entitlement to reflect the additional bank holiday.
If the Green Book doesn't apply, you'll need to review the contracts of your term-time only staff. As the law currently stands*, all term-time only staff should receive a minimum of 5.6 weeks' paid leave (28 days for those people working five days a week). If this is stated to be inclusive of all statutory bank and public holidays, you may not have to pay them for the extra bank holiday. However, if you offer your full-time members of staff additional paid holiday which you don't give to your term-time only staff (pro-rated), you may be in breach of the Part-Time Workers (Prevention of Less Favourable Treatment Regulations) 2001. The employee will need to identify an actual comparator who does work that is 'broadly similar' to them. There's not much case-law on these regulations (and none that relate to teachers) so please take advice if you're unsure.
* Brazel v Harpur Trust has been appealed to the Supreme Court who heard legal arguments earlier this month. We expect the judgment to be published in the new year.