Public holidays in contracts of employment

With there being talk of the possibility of another public holiday for employees, this may well bring delight to employees whilst at the same time a groan of disdain from employers grappling with another public holiday and how to treat that. It seems like a timely reminder then to consider how public holidays can be referred to in contracts and how they operate under legislation.

Public Holidays in Contracts of Employment

As with any clause within a contract of employment, there are different ways of dealing with public holidays. They are often, naturally, tied into a clause on annual leave and there may be wording such as ‘You are entitled to 20 days of annual leave… (exclusive of public holidays)’ outlined in the contract.

With regard to the public holidays themselves, sometimes a contract will outline what the public holidays actually are in Ireland. Currently the following nine days are public holidays:-

• New Year’s Day (1 January)
• St Patrick’s Day (17 March)
• Easter Monday
• The first Monday in May
• The first Monday in June
• The first Monday in August
• The last Monday in October
• Christmas Day (25 December)
• St Stephen’s Day (26 December)

It is worth remembering that Good Friday is not a public holiday – although some workplaces do still take that as a day off and may ask employees to take such a day as annual leave.

On the other hand, some contracts may just outline that ‘The Employee is entitled to paid public holidays in compliance with the Organisation of Working Time Act 1997 (as amended from time to time).’ Such an approach means that, should there be changes to the operation of public holidays or holidays themselves, then those will just be carried out in accordance to the Act. But what are the rules around public holidays?

The Organisation of Working Time Act 1997 (as amended) (the ‘Act’)

Sections 21 and 22 of the Act govern public holidays. It outlines in section 21(1) that an employee will be entitled to one of the following which the employer determines:

(a) a paid day off on that day,
(b) a paid day off within a month of that day,
(c) an additional day of annual leave,
(d) an additional day’s pay.

It is worth remembering that where the public holiday falls on a day which the employee would be entitled to a paid day off, then the above would read as if subsection (a) was omitted.

Whilst the employer determines how to treat the annual leave out of the options set out on section 21(1) above, an employee does have the right under the Act to request (not less than 21 days before the public holiday) that the employer makes a determination as to what the employee will receive for their public holiday i.e. are they getting a paid day off or otherwise. If an employer does not respond to that request then the employee would be due a paid day off in accordance with section 21(1)(a).

Which employees receive the benefit of a public holiday?

Full time employees will immediately have an entitlement to a public holiday. On the other hand, part-time employees will only have a right to a public holiday where the employee has worked for the employer for at least 40 hours during the period of 5 weeks ending the day before the public holiday.

It may be relatively straightforward to deal with a full time employee for the purposes of public holidays but part-time employees can be a little more complicated. Where a part-time employee fulfills the criteria above and usually works that day then you are entitled to an additional day’s pay. On the other hand, if the part-time employee does not usually work that day then the employee should get one fifth of their weekly pay.

Are there any exceptions to an employee being entitled to receive a public holidays?

The exceptions are set out in Schedule 3 to the Act. During the period of Covid-19 there were a number of lay-offs in businesses and Schedule 3 notes that for a lay-off of more than 13 weeks, an employee will not be entitled to the public holiday. The corollary of that being that where the lay-off has been for a period of less than 13 weeks then an employee is still entitled to their public holiday being paid.

Employees will also not be entitled to a public holiday whereby:-

1. an employee has been off work for more than 26 weeks due to an ordinary illness or an accident
2. an employee been off work for more than 52 weeks due to an occupational accident

Employees are also not entitled to a public holiday when they are on strike.

What about an employee whose contract of employment ceases around the public holiday?

If the situation were to arise that an employee’s employment finished during the week ending on a day before a public holiday, and the employee has worked for the previous 4 weeks, then the employee is entitled to receive an additional day’s pay for the public holiday. This should always be considered when an employee is leaving and whether it applies or not.

What if the public holiday falls on a day the employee doesn’t usually work?

This is covered by section 21(6) of the Act. Usually where a public holiday falls on eg a Saturday or Sunday, an employee still has an entitlement to a public holiday. Normally the public holiday may be observed on the next working day but this is not obliged of employers.

Conclusion

There can be some tricky situations with public holidays, and employers should remember that there are various options as to how to treat them. It remains to be seen as to whether another public holiday will materialise for Irish employers – but they will know how to handle them in contracts and in reality.

For further information on this topic, please contact Laura Graham at lgraham@reddycharlton.ie

The above article was first published on 10 October 2021 on the Legal Island website.