What are the legal questions arising from the bank holiday scheduled for the Queen’s funeral?

Following the sad news of the passing of Her Majesty Queen Elizabeth II, the day of the State Funeral (Monday 19 September 2022) has now been confirmed by King Charles III as an additional Bank Holiday. What is the legal position with regard to time off for employees who would normally be at work on this date?

Employees do not have an automatic right to paid time off for a bank holiday.

Employment contracts usually provide for a certain number of days leave but will vary in how bank holiday entitlements are expressed. If the employment contract simply states that holiday entitlement is 20 (or more) days "plus bank holidays" there is a right to have paid time off for the National Day of Mourning (as such contract wording gives employees a contractual right to all bank holidays). If it is not operationally possible to allow an employee to take the 19 September off, a day in lieu should be given.

However, it is more common for contracts to reference 'normal Bank Holidays' or refer to a maximum number such as '8 bank or public holidays.' In such cases, the National Day of Mourning does not fall within the contractual entitlement and it will be for you as employer to exercise discretion as to whether you will allow employees to take all or part of the day off to mark the day.

The government has published brief guidance on this matter stating that "The bank holiday will be a unique national moment, and we would encourage employers to respond sensitively to requests from workers who wish to take time off."

A number of businesses will close on the National Day of Mourning but, if there are operational reasons why it is challenging for you to allow employees to take time off for this particular day, you should look at how to approach this fairly.

As there is no statutory right to take time off on this day, it would be possible to pay employees a discretionary additional sum as a matter of goodwill, or to allow time to be taken on a different date.

If employees request to take leave from their existing holiday allowance, such requests should be considered favourably, where at all possible. It is also sensible to factor into your considerations that schools and other childcare providers will be closed, so some  employees may require time off for family reasons (which they may seek to take as authorised annual leave and/or unpaid emergency time off for dependents).

Will overtime be payable to employees who do attend work on the National Day of Mourning?

This depends on the wording of the employment contract or any contractually binding policy on additional pay for Bank Holidays. The day has been designed as a formal Bank Holiday, therefore if there are binding provisions that provide for an uplift to basic pay when working on a Bank Holiday those arrangements will come into force. However, there is no statutory right for additional pay on a Bank Holiday, so in the absence of such contractual provisions, only basic pay is required.

What else should we consider?

If your business needs to remain operational, it is also sensible to consider how best you can show respect as a business on the day, and enable those employees who wish to do so, whilst you are operating. For example, some businesses, might choose to hold a period of silence and/or play the national anthem and/or allow employees to wear black armbands. 

It would also be worthwhile offering support to employees, for example signposting Employee Assistance Programme services, or similar, as some employees will be directly impacted by the period of mourning and others may find that it leaves them feeling distressed in conjunction with other grief or issues they may be dealing with. Likewise, you can ask all employees to be sensitive in communication with one another, mindful of the fact that people will have wide-ranging reactions to the death of the Queen, to the period of mourning and to the funeral.