Part-timers and public holidays guide No.4

The Green Book states that ‘part-time employees shall have applied to them the pay and conditions of service pro-rata to comparable full-time employees in the authority’ (Part 2, paragraph 8.1). Similar provisions appear in other local government conditions of service. Many authorities have experienced difficulties in implementing this principle in relation to public holidays.

This guidance is aimed at authorities that require support in implementing pro rata entitlement. It is only a suggested approach and does not impact upon the way that some authorities may have already implemented this provision.

In addition to the pro-rating of public holidays, the principles of this guidance can be used when pro-rating extra statutory days.

 

As well as the Green Book provisions, authorities need to consider the implications of the Part-time Workers Regulations, which state that ‘a part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker as regards the terms of his contract’ (regulation 5(1)). It should be noted that job-sharers are part-time workers.

The provisions of the Regulations in relation to public holidays were considered by the Court of Session in McMenemy v Capita Business Services Limited [2007] IRLR 400. The Court of Session held that a part-time employee who worked Wednesday to Friday was not treated less favourably than a full-time employee because he did not receive paid time off for public holidays which fell on a Monday. This was because the reason he did not receive time off was that he did not work Mondays and not that he was a part-timer. However, it was significant that there were also full-timers who worked a 5 day per week working pattern who did not work Mondays and therefore there was no less favourable treatment in comparison. This case cannot therefore be relied on where the normal working week is Monday to Friday.

Many authorities will be aware that in 1994, the then Manual Worker National Joint Council issued a circular (1/94). This detailed an agreement in relation to the pro-rating of public holidays for part-time manual worker employees. It provided the following method for calculating entitlement –

Part-time weekly contractual working hours / 39 x 7.8 = hours entitlement per public holiday 

(Based on the manual worker full-time hours of 39 per week, 7.8 hours per day)

 e.g. an employee working 20 hours per week: 20/39 x 7.8 = 4 hours per public holiday

The circular stated that procedures for applying the entitlement be determined locally with local consultation and may include the taking of time off in lieu (TOIL), annual leave or computation into hourly rates of wages.

Many authorities that have implemented pro-rata entitlement are using the 1994 Manual Worker Agreement calculation (with the figures used based on the authority’s standard full time working week hours). This calculation is quite easy to understand and can be used even where an employee does not work the same pattern of hours each week (through determining an average number of hours per week). Example calculations are at Appendix 1.

Some authorities may have implemented different calculations. The approach used by authorities must satisfy equal value considerations and be easy to understand by managers and employees.

The 1994 calculation provides an employee with the number of hours they are entitled to for each public holiday. This figure can be multiplied by the number of public holidays per year to provide an annual figure. Authorities will need to determine which approach they wish to take.

If hours are calculated with reference to an annual figure, the authority will need to monitor entitlement if an employee commences or ceases employment during the year. Where an employee ceases employment and has taken more hours than were due to them, the authority will need to determine whether these hours should be reimbursed by the employee (in the same way as annual leave). When determining how many hours an employee is due the authority will need to look back at the actual number of public holidays that have occurred during the period, rather than simply pro-rating all entitlement according to the proportion of the year worked.

The authority should ensure that managers and employees understand the approach and the implications should hours be ‘banked’ on an annual basis.

(1) The above calculation applies to determining how much leave an employee is entitled to at their date of leaving. However, if the authority has to pay for any leave outstanding, the authority should base their formula for payment on working days (e.g. 1/260) rather than calendar days, as in the case of Leisure Leagues UK v Maconnachie (EAT/940/01), unless the authority has a specific contractual term that provides for a different formula.

Once the method of calculation is determined, authorities need to consider how to reimburse the employee for any time they are entitled to. In practice, this can be through time off (via annual leave, flex or TOIL) or payment, although employees must take their working time annual leave provision as leave. When determining the approach, it may be helpful to consider current arrangements in place for time off or payment. For example, if the authority already operates a flexi-time scheme they may wish to incorporate the hours into any flexi-time ‘bank’. 

Authorities need to determine whether they have a corporate agreement as to how the hours are reimbursed, or whether it is subject to local determination between the employee and their line manager. Where local determination is agreed, it would still be helpful to set down some corporate principles and standards in order to ensure consistency and to aid manager and employee understanding.

The area that appears to cause most problems for authorities is determining whether those employees who have traditionally been entitled to the majority of public holidays now have to ‘pay back’ any excess time. For example –

A and B are both part-time, working 18.5 hours per week. The FTE weekly working hours are 37 (7.4 hours per day).

A works the following pattern–

A and B’s public holiday entitlements are calculated in the same way as follows –

18.5/37 x 7.4 = 3.7 hours per public holiday

If Monday is a public holiday-

• A would normally work on that day but as it is a public holiday and they do not work, they must deduct 3.7 hours from their public holiday entitlement. This leaves 3.7 hours outstanding.
• B does not normally work on that day and therefore has 3.7 hours public holiday entitlement to take at another time.
• This potentially means that A has 3.7 hours extra time off than B, unless the authority requires that A ‘pays back’ the 3.7 hours, such as deducting the hours from annual leave or by requiring A to make up the time.

Some authorities have decided to forego any debits that arise, whilst others expect the employee to make up the time, within a reasonable timescale (for example, by working extra hours or deducting the debit from annual leave or flex).

When considering which approach to take, authorities need to consider fairness and equity. In addition, any change to current arrangements may be a variation of an employee’s contract. For guidance on varying a contract please see Employers’ guide no.3 – Variation of contracts. When proposing any change, authorities may consider offering a phasing in of the new arrangements.

Some authorities have questioned whether the Part-time Workers Regulations may impact on what an authority can do to specify when time off is taken. The Working Time Regulations state that the employer can require a worker to take all or any of their leave at specified times, providing that the worker is given prior notice (regulation 15). If an authority has a written policy on how public holiday entitlements will be reimbursed and this has been communicated to employees, this should ensure that they have been provided with sufficient notice.

It is essential that the employee and their line manager are clear about the employee’s entitlement and how and when this will be taken. Many authorities use timesheets that enable the recording of hours. Others include a section on the annual leave recording system to record what hours the employee is entitled to and when time should be deducted. The authority needs to determine the most effective approach, bearing in mind their current arrangements and also decide whether there will be a standard approach across the authority, or whether decisions about recording will be agreed at a local level between the employee and manager.

Part 3 of the Green Book states that if an employee is absent through sickness on a public or extra statutory holiday no substitute holiday should be given (Part 3, paragraph 4.5). This principle should apply equally to full-time and part-time employees.

The approach to be followed for part time employees is dependent on whether their public holiday hours are ‘banked’ for the year or given as each public holiday occurs.

If the hours are ‘banked’ then the employee must debit their hours for the public holiday, even though they were off sick. If entitlement is given as each public holiday occurs, they should neither accrue nor get debited for that public holiday entitlement.

Sections 71 and 73 of the Employment Rights Act 1996 provide that women on ordinary and additional maternity leave are entitled to the benefit of their terms and conditions of employment that would have applied if they had not been absent, with the exception of remuneration. The Green Book provides that an employee is entitled to a paid day's leave for each of the statutory, general and public holidays as they occur and they should therefore accrue leave at their pro rata rate for each public holiday that falls during this period.

Arrangements for reimbursing employees who work on a public holiday are set out in Part 3, paragraph 2 of the Green Book. At the time of the 1994 Agreement, the following was agreed in relation to the link with pro rata public holiday entitlement. 

• An employee who is required to work additional hours beyond the full-time working week, which includes work on a public holiday, is entitled to double time and their pro rata public holiday entitlement (a full-timer who works overtime on a bank holiday would get double time plus a day off in lieu due to their contractual entitlement to a paid day's leave on a public holiday).
• An employee who is required to work on a public holiday as part of their normal contractual working week is entitled to their normal pay for that day plus plain time rate and their pro rata public holiday entitlement.

Authorities that operate their own local arrangements in relation to reimbursement for public holiday working should consider what approach they will take.

• What current arrangements exist within the authority for pro-rating entitlement to public holidays? (Think about job sharers as well as traditional part-time staff, any differences between former manual and non-manual employees and approaches within different teams and/or departments.)
• What calculation should the authority use?
• Will entitlement be calculated as each public holiday occurs or over the leave year, so the employee has a ‘bank’ of hours?
• How will the employee take any ‘credited’ hours (i.e. added to annual leave, TOIL, flex, payment)?
• Will the method and arrangements for taking credited hours be agreed locally between the line manager and employee or agreed on a departmental or corporate basis?
• How will the authority deal with ‘debits’? Will employees be required to make up time?
• How will the authority consult with managers, staff and trade unions on the proposed approach?
• How will the approach be communicated to managers and staff?
• If a written policy is developed, does it cover all the issues, such as the making up of debits and the relationship with sickness absence or maternity leave?
• Will training or additional guidance be required to help managers manage credits and debits?
• How will hours be recorded?
• How will the authority monitor and review the success of the approach?

Leisure Leagues UK Ltd v Maconnachie (EAT/940/01) – Advisory Bulletin No. 453,

May 2002

McMenemy v Capita Business Services Limited [2007] IRLR 400 – Advisory Bulletins No. 527 and 520

Calculation based on 1994 Manual Worker Agreement is:

No. Contracted hours per week / No. FTE hours per week x No. FTE hours per day

The above calculation provides the entitlement in hours for each public holiday. If an annual entitlement is preferred, the figure should be multiplied by the number of public holidays within the year.

The examples below assume that full-time employees work 37 hours per week, which equates to 7.4 hours per day.

Example 1

Employed 52 weeks per year, 5 days per week, 20 hours per week

Entitlement per public holiday = 20/37x7.4 = 4 hours

Example 2

Employed 52 weeks per year, 4 days per week, 20 hours per week but variable working pattern

Entitlement per public holiday = 20/37x7.4 = 4 hours

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