Entitlement to bank holidays in lieu of sickness

[techknowuk]

My employee was off on sick (stress) leave for approximately three months. He submitted doctors note(s) as requested and attended all interviews to arrange a satisfactory transition back to work. Now that he has returned to work, he is claiming that he is allowed to claim for the three bank holidays (St Patrick's day and the two May day holidays) as part of his holidays that he proposed to take later this summer. his contract states that he is entitled to a certain number of days annual holidays, including the bank holidays. During the bank holidays the place of employment would be closed. Are we within our rights to refuse his request for three extra days holidays. thanks you for your hep.

[ULA]

From the information on the bank holidays I am presuming you are in Northern Ireland? My experience is based on English and Welsh employment law and although broadly similar I know that there are some differences but possibly not on this issue.

The employee's entitlement will depend on whether the bank holiday forms part of their statutory holiday entitlement under the Working Time Regulations 1998 (WTR) which the equivalent in Northern Ireland is The Working Time Regulations (Northern Ireland) 2016. If my interpretation is correct, then all workers are entitled to 5.6 weeks' paid holiday in any leave year. If you give employees the minimum holiday entitlement under the Regulations (5.6 weeks) and this includes bank and public holidays, a bank holiday will form part of the employee's statutory holiday entitlement. In support of this the case of Pereda v Madrid Movilidad SA [2009] IRLR 959 ECJ, the European Court of Justice held that a worker who is on sick leave during a period of scheduled annual leave must be allowed to take the annual leave at a later time. This means that where an employee is on approved sickness absence during a bank holiday that forms part of their minimum holiday entitlement, they should be allowed to take a day off in lieu. Payment in lieu of the statutory holiday entitlement is permitted only on termination of employment.

If though you give paid time off on bank holidays, in addition to the statutory minimum, the employee's potential right to a compensatory day off or pay in lieu in respect of a bank holiday will depend on the terms of their contract of employment or any policy on the matter that forms part of the contract.

Hope this helps.