| This month we look at a difficult area for | | | | employee's working days, how should the |
| employers - what bank holidays are your | | | | employer make up the additional day(s)? The DTI |
| part-time employees entitled to? With two bank | | | | Guidance on part-time working suggests that it |
| holidays in May, the Employment Appeal Tribunal's | | | | may be necessary to remove the disadvantage |
| recent decision in McMenemy v Capita Business | | | | suffered by those staff who do not receive |
| Services Limited will be of interest to employers | | | | particular days off as a result of their particular |
| of part-time staff. | | | | working pattern, for example, by giving all |
| Four of the eight bank holidays always fall on a | | | | workers a pro rata entitlement to days off in lieu |
| Monday (Easter Monday, May Day, Spring Bank | | | | according to the number of hours they work. In |
| Holiday and August Bank Holiday). One is always | | | | our example above, this would mean giving the |
| on a Friday (Good Friday) and the other three | | | | employee at least one additional day off in lieu of |
| vary from year to year. There has been debate | | | | bank holidays. |
| for some time about whether part time | | | | The difficulty with such a system is that it is |
| employees are eligible for pro-rata time off in lieu | | | | complicated to administer and can have an |
| of bank holidays where they do not work on a | | | | adverse effect on part-time employees who do |
| Monday. The basis for this argument is the | | | | work on Mondays. If the part-time employee |
| Part-Time Workers (Prevention of Less | | | | worked on Mondays, Wednesdays and Fridays, at |
| Favorable) Treatment Regulations 2000 that | | | | least five bank holidays would fall on working days |
| make it unlawful to treat a worker less favorably | | | | (all the Monday bank holidays and Good Friday). If |
| on grounds of his or her part-time status. | | | | Christmas Day and New Year's Day also fell on a |
| In this case, Mr. McMenemy worked three days a | | | | Monday, seven bank holidays would fall on |
| week (Wednesday, Thursday and Friday). He | | | | working days. Under the pro-rata system |
| claimed that he was being treated less favourably | | | | suggested by the DTI, the employee would only |
| than full-time employees, as he did not get the | | | | be entitled to five days of bank holidays. What |
| benefit of bank holidays that fell on a Monday. | | | | should the employer do about the other two bank |
| Under his contract of employment, he was | | | | holidays for which they would have been paid? |
| entitled to take paid leave on public holidays | | | | There are two options. Either the employee would |
| where they fell on one of his normal working | | | | be required to use some contractual holiday |
| days. His employer's business operated 7 days a | | | | entitlement to cover those days or alternatively |
| week. This meant that some full-time employees | | | | be given the option of coming to work on a day |
| also did not work on Mondays. In fact, Mr. | | | | they did not normally work. Neither of these |
| McMenemy's line manager had worked a Tuesday | | | | options would be favored by employers or |
| to Saturday shift for some time. During this | | | | part-time employees, as they are difficult to |
| period, he did not get time off in lieu of bank | | | | administer and would not fit in with part time |
| holidays that fell on a Monday. The Employment | | | | working arrangements. |
| Appeal Tribunal held that the reason that Mr. | | | | Many employers therefore simply give their |
| McMenemy did not get time off in lieu of bank | | | | part-time staff the benefit of bank holidays if |
| holidays that fell on a Monday was not because | | | | they fall on one of their normal working days. This |
| he was part-time as full-time employees were | | | | system clearly does not always give part-time |
| treated in the same way. Rather, it was because | | | | staff the same benefits as full-time staff on a |
| he did not work on a Monday. Mr. McMenemy | | | | pro-rata basis. As such, it is unlawful discrimination, |
| therefore lost his claim. | | | | unless an employer can justify it. There is an |
| This case is likely to be helpful to many | | | | argument that an employer could justify this |
| employers in the retail, leisure and manufacturing | | | | system of restricting the benefit of time off for |
| sectors that operate on a 7-day week basis. | | | | bank holidays to staff who actually work on those |
| However, where does it leave employers who | | | | days on the basis that the time off relates to the |
| operate 5 days a week from Monday to Friday? | | | | days worked rather than the part-time status. |
| What are the options for employers who operate | | | | However, this argument is untested. |
| 5 days a week? | | | | This issue may be resolved in the not too distant |
| Where an employer operates on a 5-day week | | | | future as the Government proposed in its 2005 |
| basis (Monday to Friday), all full time employees | | | | election manifesto that during their third term |
| will receive the benefit of bank holidays that fall | | | | they would extend the entitlement to paid annual |
| on a Monday (assuming that their contracts of | | | | leave to include bank holidays. The Government |
| employment provide for this). A part-time | | | | has included an enabling power in the Work and |
| employee who does not work on Mondays will | | | | Families Bill. This is subject to further consultation |
| benefit from a maximum of only four bank | | | | and is not expected to come into force until 2007 |
| holidays a year (depending on what day | | | | at the earliest. What is worth noting however is |
| Christmas falls). | | | | that the DTI make clear in their Guidance that if |
| The Part-Time Workers (Prevention of Less | | | | bank holidays are treated as additional leave on |
| Favorable Treatment) Regulations 2000 provide | | | | top of the statutory four weeks, the amount of |
| that part-time workers should have the same | | | | time allocated to part-time staff will be calculated |
| benefits as full-time workers on a pro rata basis. | | | | on a pro-rata basis. |
| A full-time employee will get 8 days off for bank | | | | There is no easy solution to this issue. Employers |
| holidays. Therefore, a part-time employee who | | | | need to consider their working arrangements |
| works say 3 days a week should get 5 days off | | | | carefully. If you would like further advice on this, |
| in respect of bank holidays. As a maximum of | | | | please contact one of the employment team. |
| only four bank holidays fall on the part-time | | | | |