Georgina Folkes, solicitor at Withy King, explains the legal issues surrounding part time employees and bank holidays.

Four of the UK's eight bank holidays always fall on Monday (Easter Monday, May Day, Spring Bank Holiday and August Bank Holiday). One is always on a Friday (Good Friday) and the other three vary. For some time, there has been debate about whether the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 make it unlawful for an employer to allow a full-time worker paid time off for Monday Bank Holidays, when part-timers who do not work Mondays do not receive paid time off for those days because they lose out on four days’ pay compared to full timers.

This issue was considered recently in the case of McMenemy v Capita Business Services Limited (2007), by the Scottish Court of Session. Mr McMenemy was a part time worker whose days of work were Wednesdays, Thursdays and Fridays. His employer gave all employees a specified number of days holiday per year (pro rated for part timers) plus paid bank holidays, but only if they normally worked on the day on which the bank holiday fell, which is common practice. Mr McMenemy claimed that amounted to less favourable treatment on grounds of his part-time status, because most bank holidays fall on a Monday and as he didn’t normally work on Mondays, lost out on paid holiday for those bank holidays.

The Scottish Court of Session reaffirmed the Employment Appeal Tribunal's previous decision that this did not amount to less favourable treatment on the grounds of Mr McMenemy's part time status, holding that the less favourable treatment must be solely on grounds of the worker's part-time status for it to be unlawful under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. It held that, the reason why Mr McMenemy received less favourable treatment than a comparable full-time worker was "through the accident of his having agreed with the respondents that he would not work for them on Mondays or Tuesdays" rather than the fact that he was a part timer. The employer would have treated a full-time worker who did not work on a Monday in the same way (the company operated seven days per week) and therefore Mr McMenemy had failed with his claim.

This case should reassure employers that claims for less favourable treatment by part timers who miss out on bank holidays because of their working patterns should fail because the reason for 'the less favourable treatment' is not 'on the grounds that they are part time workers', but because they decided not to work on Mondays – in other words, hard cheese.

But one complication is that it still might be possible for a woman to succeed with a claim for indirect sex discrimination because more women than men work part time and therefore could argue that they suffer a disadvantage compared with men over holiday entitlement and when they are required to take it. If a claim of indirect sex discrimination was brought, the employer would need to objectively justify the less favourable treatment in order to successfully defend the claim.

The cautious among you or those wishing to ensure equality to all might consider giving all employees a set number of days holiday per year inclusive of bank holidays and then pro rate the number of holidays according to the hours/days worked. This would mean that those who normally work on the day on which a bank holiday falls will get that day off as a paid holiday but those who don’t usually work on that day will be able to take their holiday on a different day meaning no one looses out on holiday entitlement.

For further advice on this topic please contact Georgina Folkes at Withy King Solicitors on 01793 536 526 or email [email protected]