Following the sad news of the passing of our Majesty the Queen we look at the impact the period of mourning and her funeral will have on employers and employees over the coming weeks.
Current position
We are now in a period of National Mourning until the end of the Queen’s State Funeral on 19 September 2022. The official Government guidance is that there is no obligation on businesses to close during the national period of mourning, although some may wish to do so (particularly on the day of the funeral). The decision as to whether a business closes is down to the discretion of each business.
Queen’s state funeral
The funeral is now confirmed as Monday 19th September 2022. It has also been confirmed as a bank holiday across the UK. As stated above it is left up to businesses’ discretion to decide on whether they close or not.
Will employees be entitled to take this additional bank holiday off and will it be paid?
One question many workers (including employees) will be asking is whether they have an automatic right to this bank holiday and will it be paid? There is no automatic right to this additional bank holiday but this very much depends on the wording of an individual’s contract of employment. Employers should also check any associated holiday policy.
Examples of what to check in the employment contract are:
- ‘x’ days holidays plus ‘bank holidays’ then staff would have the right to this additional bank holiday and it would be paid.
- ‘x’ days holidays plus ‘bank holidays’ and states the bank holidays specifically Christmas Day, Boxing Day etc or has ‘x days’ holiday plus 8 bank holidays then they would not be entitled to the additional bank holiday for the Queen’s funeral.
- 6 weeks inclusive of bank holidays, then they can take the additional bank holiday but this would come out of their annual holiday entitlement i.e. not an extra day’s holiday. If they have exhausted their holiday entitlement then employers are advised to consider alternatives such as whether the employee can still work that day or do they wish to allow an employee to take this as an unpaid day’s leave.
- 6 weeks with no right to take bank holidays does not guarantee the employee time off for this additional bank holiday. Employees may choose to take this day off as part of their holiday entitlement (subject to the Company’s holiday policy for requesting leave).
For part time workers and shift workers then this again will depend on the wording of the contract
- For part time workers where the additional bank holiday falls on their non-working day, they should be allowed to take the day at another time, if full time workers are given the day off and in order to avoid any potential claims of sex discrimination or less favourable treatment on the grounds of part time worker status.
- Shift workers may receive additional pay for working bank holidays and this will depend whether the employee or worker is required to work that day.
No right to time off
If workers (including employees) do not have the right to this additional bank holiday as per the wording in their contract then they could (subject to agreement from the Company)
- take this day as unpaid leave
- use some of their existing holiday entitlement
- use flexitime/make up the time
- use emergency dependants leave (see below)
Alternatively, employers may decide that as a gesture of goodwill that they will allow workers to have the day off but state this is a one off and is not intended to become custom and practice should there be other Royal funerals or events that lead to additional bank holidays being declared.
What if employers need to remain open or choose to remain open
Some businesses may not be able to close and therefore, employers where possible may wish to allow their workers to pay their respects in the following ways;
- by observing the two minutes silence
- allowing staff to watch the procession and television coverage on a communal TV through extended breaks
- allowing staff to work from home and be flexible with breaks so that staff can watch the funeral.
Employers who propose to close are advised to be mindful that not everyone will want to observe or participate in the Day of Mourning. In such cases, employers may wish to consider allowing such workers to still work (if possible) and take the day at a later date (subject to their contract and/or the practical arrangements of the business allowing for this). Employers are advised to handle this situation sensitively, check all applicable contractual documentation carefully and seek further advice if necessary.
Possible Sex Discrimination Arising from School Closure
As 19 September 2022 has been declared as a bank holiday schools will be closed. The issue of childcare may be problematic for some, especially women who are still considered the primary carer and therefore, employers need to be careful of sex discrimination claims especially if they remain open. If an employer decides to remain open on 19 September, then parents may need to take emergency time off for dependents if they are unable to source childcare. This is usually unpaid leave, but employers are encouraged to be flexible and see if there are ways to accommodate parents where schools are closed, such as allowing employees to work from home or work flexitime, making up their hours at a different time in order to reduce the risk of discrimination claims.
Conduct issues
Employers should also be mindful of employee behaviours at this time as people have different views on the monarchy and whilst most people will want to pay their respects, there may be others who do not. Employers are advised to seek to address any disruption or differing views in a balanced and reasonable manner to avoid any arguments of unfair treatment being raised by individuals’ or tensions bubbling over into the workplace, referring to the applicable disciplinary or grievance procedure if necessary. Like any workplace dispute involving different views and beliefs, this should always be sensitively handled to avoid bringing any other employment claim risks into play such as discrimination claims or constructive dismissal claim if matters get so serious it leads someone to resign and argue a serious breach of their contract or implied terms (a topic beyond the scope of this article).
Discrimination – Religion and Philosophical Belief
It is also worth noting that being a Royalist is currently not considered a “protected characteristic” for the purposes of discrimination law contained in the Equality Act 2010; that does not stop employees trying to argue it is protected under the Equality Act as a philosophical belief, but this has not been tested in the tribunals so far.