Christmas bank holidays and enhanced pay – Mr S Masterson and Others v ASDA Stores LTD

The claim

A group of 52 warehouse employees of Asda brought a claim to the Employment Tribunal stating they had been underpaid in respect of ‘bank holiday enhancements’.  They believed they were entitled to holiday payment for the dates 27 & 28 December and 3 January in 2021/22 as “substitute days” where bank holidays fell on weekends.  Asda disputed this saying they were within their rights to determine bank holiday pay.

There was in place a national recognition agreement between Asda and the GMB union.  The agreement stated that “All bank holidays are ‘fixed’ to the calendar day they fall on. In the event that the Government re-designates these, by local agreement with GMB sites will [sic] decide to redesignate or not. If the Government designates additional public holidays in any year, these will not count automatically as bank holidays and will be agreed nationally with the National Joint Council”.

The dispute arose because in the 2021/22 Christmas period, Christmas Day, Boxing Day and New Year’s Day all fell on weekends.  If a bank holiday is on a weekend, a substitute weekday becomes a bank holiday, normally the following Monday.

The claimants argued that where these bank holidays are re-designated for the following working day, the bank holiday enhancements should follow and be payable for work on these days.  So, for 2021/22 they would be payable for work on 27 and 28 December and 3 January.

Asda disagreed.  It decided that the bank holiday enhancements would be due on the bank holidays as they normally fell (the conventional days) hence only working on 25 and 26 December and 1 January would attract the bank holiday enhancements.  One reason the claimants objected to this was that the depots in which they worked were closed on Christmas Day. Therefore, no employee would receive the bank holiday enhancements for that day as no one would be rostered to work.

The recognition agreement required GMB and Asda to agree whether bank holidays remained on their conventional days (25, 26 & 1) or were re-designated (27, 28 and 3).

The judge concluded that no bank holiday enhancements were due to the employees for any hours worked on the 27 and 28 December and 3 January, as it was not agreed between the GMB and Asda to redesignate the bank holiday dates.  The judge held therefore that where no agreement is reached, the default is that the enhancements were due only on 25 and 26 December and 1 January, even if in some years these dates will be at weekends and not bank holidays.

As a result, the employees’ bid for enhancements in respect of the 27 & 28 December and 3 January was rejected by the Tribunal.

Key points for Employers to note

If your business pays enhanced rates or other perks for working on bank holidays, ensure that your contracts and policies are clear as to when these apply, particularly with regards to the three bank holidays during Christmas and New Year, which can end up falling on weekends.

If you pay enhanced rates for weekends, consider how these will interact with bank holiday rates where Christmas, Boxing or New Year’s Day fall on a weekend.

If you require advice and assistance with enhanced rates, or any other employment law issue, please do not hesitate to get in contact with a member of our Employment team.

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