Flexible working, bank holidays and employees

A case study, by Partner and Employment Law Solicitor, Susan Mayall

One of my employer clients was wanting to look at the way they calculated holidays for members of staff who worked shifts or worked a part time basis.

With more and more employees working flexibly to fit in their caring responsibilities or other work-life activities, a person working 9-5 Monday to Friday is quite often not now the norm.

My client had a number of workers working four days a week and had previously been calculating holiday entitlement with regards to Bank Holidays based on if the employee worked on the Bank Holiday.  This meant that Carol, an employee who worked Tuesday to Friday each week and therefore was already off work on the four Bank Holiday Mondays, did not receive the benefit of them as she was already off, whereas Mandy who worked Monday to Thursday gained the benefit of each of the Monday Bank Holidays.  Our client wanted to treat all its employees fairly and we looked into this and calculated options.

Our client has now changed from using the “normal working day” approach for calculating Bank Holiday entitlement for part-time workers to a “pro rata” approach which to my client and Carol seemed far fairer.  (The downside of this for Mandy is that she will under the pro rata system receive less entitlement to Bank Holidays.)

My advice on this is that if you as an employer have part-time workers, you should review how you calculate Bank Holidays to ensure fairness to all and to avoid a claim of less favourable treatment based on the employee’s part-time status or even a potential indirect sex discrimination claim.

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