Christmas/New Year Holidays 2015/16

Establishing on what days the holidays fall:

This year 25 December and 1 January fall on a Friday and therefore Christmas Day and New Years’ Day will be observed on those days.

However, as 26 December and 2 January fall on a Saturday, the days on which these public holidays will be observed depends on the working pattern of the employee concerned: 

• For employees for whom Saturday would otherwise be a working day, Boxing Day and the second day of January will be observed on the Saturday.
• For employees for whom Saturday would not otherwise be a working day, Boxing Day and the second day of January will be observed on the following Monday (28 December or 4 January respectively).

Employees are not entitled to more than four public holidays over the holiday period. 

Note that some employees, may not get four holidays over this period, because some of the holidays may fall on days that would not otherwise be working days for them.  For example an employee who only works from Tuesday to Thursday will not be entitled to any public holidays over the Christmas/New Year period this year.

Determining what would otherwise be a working day:

Where it is not clear “What would otherwise be a working day” a number of factors must be taken into account, including the employment agreement, the employee’s work patterns and other relevant factors such as the roster, the reasonable expectations of the employer and the employee that the employee would work on the day concerned and whether, but for the day being a public holiday, the employee would have worked on the day concerned.

Requirement to Work on Public Holidays:

An employee may only be required to work on a Public Holiday, provided that day would otherwise be a working day for them.

Payment for Working on a Public Holiday:

Every employee who works on a public holiday must be paid a premium regardless of whether or not that day would otherwise be a working day for them.  The premium for most employees is loosely described as time and a half.  However, that is not 1.5 times their base rate.  Rather it is what they would otherwise have been paid for working on the day (ie their relevant daily pay) plus half that amount again.

Technically the entitlement is described as the higher of:

• the portion of their Relevant Daily Pay or Average Daily Pay (less any penal rates) that relates to the time actually worked on the day, plus half that amount again, and
• the portion of their Relevant Daily Pay that relates to the time worked on the day.

Entitlement to an Alternative Holiday:

An employee who works on any part of a Public Holiday which falls on a day that would otherwise be a working day for them is also entitled to a whole Alternative Holiday on pay at a later date. Note here that the payment for the alternative holiday is determined by the hours the employee would otherwise have worked on the day the alternative holiday is taken; and has nothing to do with how many hours the employee actually worked on the public holiday.

So working an employee on a Public Holiday for only a short period of time can be expensive.  For example, an employee called in to work for a few hours on a Public Holiday would get at least time and a half for the time worked plus a whole paid Alternative Holiday at a later date. Similarly an employee who works late on the evening before a holiday (e.g. until 12.30 am on Boxing Day) would get the period of time worked on the holiday at T 1.5 (in this case 30 minutes @ T 1.5) plus another whole alternative holiday at a later date even though they only worked half an hour into the Public Holiday.

Taking Alternative Holidays:

Alternative Holidays should be taken by mutual agreement between the employer and the employee. Subject to the express provisions of an employment agreement, in the absence of agreement the employer can make the decision, provided the employer makes the decision on a “reasonable basis”. Not less than 14 days’ notice is required.

Employees who do not take an Alternative Holiday within 12 months of becoming entitled to it may, with the agreement of their employer, cash up their entitlement to an alternative holiday by taking payment for the day instead of the paid time off.

Payment for Observing a Public Holiday:

Employees who would otherwise work on a Public Holiday but who take the day off are entitled to be paid their relevant daily pay for the day – ie what they would otherwise have got if they had worked on that day.

Employee On-Call on Public Holiday:

Employees who are “on-call” on a Public Holiday and who are called in to work are entitled to be paid the appropriate portion of their relevant daily pay for the time actually worked, plus half that amount again. They are also entitled to an Alternative Holiday on pay at a later date.

Employees who are “on call” on a Public Holiday but who are not called into work will only be entitled to an Alternative Holiday if the nature of the restriction imposed by the on call arrangement on the employee’s freedom of action is such that, for all practical purposes, the employee has not had a whole holiday. Any dispute on whether an on-call employee is entitled to an Alternative Holiday can be determined by a Labour Inspector from the Ministry of Business Innovation and Employment. Guidelines issued by the Ministry state as follows:

If the on-call employee is required to restrict his/her activities on the day concerned to the extent that they have not enjoyed a full holiday (e.g. if required to stay at home all day) but is not called out, then the employee is entitled to a full paid day off as an alternative holiday.

However, unless the employment agreement provides otherwise, an employee on call who is able to go to about their usual activities on the basis they are obliged to respond to a callout within say 2 hours, may not be entitled to an Alternative Holiday if they are not called out to perform any work on the Public Holiday.

Sickness or Bereavement on Public Holiday:

In the case of an employee scheduled to work on a Public Holiday who calls in sick (or who suffers a bereavement) on that day, the day is to be regarded as a sick or bereavement leave as the case may be. The employee is entitled to be paid their relevant daily pay for the day which means the employee would receive the same amount as any other employee who had the day off on the holiday, but there is no entitlement to an Alternative Holiday.