What happens when Liberation Day falls on a weekend?
In past years (before the Employment Law) there has often been some confusion as to how employers should treat Liberation Day when it falls on a weekend. 2009 is the first year that this has happened since the Employment (Jersey) Law came into force.
The Public Holidays and Bank Holidays (Jersey) Act 1952 states that Liberation Day is observed as a Public Holiday if it falls on a weekday. Previous legal advice, given almost 30 years ago, was that Saturday constituted a weekday. This advice has recently been re-confirmed (February 2009). Saturday May 9th is, therefore, a Public Holiday and any employee who works on that day is entitled to an alternative day off in lieu.
As the law does not provide for an alternate day for Liberation Day (unlike Christmas Day and Boxing Day it is not a "moveable" Public Holiday), those who worked Monday to Friday often received no additional day off (unless their employer had entered in to an agreement that gave them an extra day off irresepective of the law).
Is this still the case?
The Law Officers Department has considered this issue and has given us permission to give guidance based on their conclusion. The advice is particularly clear and is helpful in that it also covers the position of full and part-time employees in relation to Bank/Public Holidays generally, not just Liberation Day. While the full response was lengthy, the conclusion of the advice now received is:
"1. All employees have a statutory entitlement to Christmas Day, Good Friday and all Public and Bank Holidays.
2. If these days fall on a day an employee is normally required to work the employer has one of two options:
(a) allow the employee the day off work, but pay them as normal; or
(b) require the employee to work; and
(i) pay them for that day’s work; and
(ii) allow the employees a paid day off in lieu.
3. If these days fall on a day an employee is not normally required to work (i.e. it is scheduled as a rest day or they work part-time) the employee:
(a) is already receiving the benefit of the day off work; and accordingly
(b) they are not entitled to a paid day off in lieu under Article 11(1)(b)(ii) because they are not required to work;
4. The above comments must be considered in the light of any collective agreement; any express term of an individual contract of employment which may apply and any weight which should be applied to long-standing custom and practice."
If employers are in any doubt as to their legal obligations, they should seek independent legal advice where appropriate. In the light of the above, we are now confident we can properly advise all our contacts that those employees who work Monday to Friday do not have a statutory entitlement to an additional day off in lieu when Liberation Day falls on a Saturday or Sunday unless specifically provided for in a relevant collective agreement or in their individual contract of employment.
Part-time and shift work employees, entitlement to Public/Bank Holidays
Finally, we have also received clarification of the statutory rights of shift workers and part-time employees regarding Public/Bank Holidays, as follows:
When an employee is not required to work on a Public Holiday because it falls on a rest day (shift workers) or on a day that they are not normally required to work (part-time workers) they cannot be said to be entitled to "leave" under Article 11. Nor then are they entitled to payment for that day either under Article 13".
Good practice
If an employer operates its Bank Holiday rules in accordance with the minimum provisions of the law, those shift workers whose rest day falls on a Bank Holiday will not receive additional compensatory time off, whereas those employees rostered to work on such days will receive time off in lieu. This inequity could cause unrest in the workplace and, consequently, a number of employers have chosen to allow all shift workers to have a day off in lieu of each Public Holiday (including May 9th when it falls on a Saturday) irrespective of whether they are sheduled to work or take a rest day. Indeed, some collective agreements negotiated with trade unions provide for this to happen.
Similarly, a number of employers have agreed that part-time employees should receive pro-rata time off for Public Holidays equivalent to their pro-rata hours of work. E.g. if full-time hours are 40 per week a part-time employee working 20 hours per week receives 50% of the paid Public Holiday time off. This is perfectly acceptable provided that the part-time employee is not required to work on more than half of the Public Holidays - if they are so required, then they should receive paid time off in lieu equivalent to the number of Public Holidays actually worked.
Liberation Day falling on a Sunday
As Sunday is not a "weekday" as defined in the Public Holidays and Bank Holidays (Jersey) Act, when May 9th falls on a Sunday (as it does in 2010) it will not be a Public Holiday and there will be no statutory right to a day off in lieu for any employee who works on that day, unless there is an agreement in place with their own employer.
Note: all of the above follows legal advice received. Employers should note it is only an an opinion and the Tribunal may not be of the same view (in the case of Renehan v G4S in 2006 the Tribunal reached a different conclusion to that expressed above). This matter will only be finally clarified if the Employment (Jersey) Law 2003 is appropriately amended or if the Royal Court has reason to make a ruling on this question.
06/02/2009