Public holidays in contracts of employment

There can be some tricky situations with public holidays, and employers should remember that there are various options as to how to treat them.

This guide aims to provide you with some clarity around public holidays, 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 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.

Sometimes a contract will outline what the public holidays actually are.

Currently the following ten days are public holidays:

• New Year’s Day (1st January)
• The first Monday in February, or 1 February if the date falls on a Friday
• St. Patrick’s Day (17th 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 (25th December)
• St. Stephen’s Day (26th 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.

Alternatively, 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 these changes will just be carried out in accordance with the Act.

But what are the rules around public holidays?

The Organisation of Working Time Act 1997 (as amended) governs the rules around 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.

Where the public holiday falls on a day where an employee is generally entitled to a paid day off, then (b), (c) or (d) above will apply.

Whilst the employer determines how to treat the annual leave from the options 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 decision 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.

Which employees receive the benefit of a public holiday?

Full time employees will immediately have an entitlement to a public holiday.

However, 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 on 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 fulfils the criteria above and usually works that day then they are entitled to an additional day’s pay.

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 holiday?  

Yes, there are exceptions, and these are set out in Schedule 3 to the Act.

For example, where an employee is laid off for more than 13 weeks, that employee will not be entitled to the public holiday.

Where the lay-off is less than 13 weeks then an employee is still entitled to their public holiday being paid.

Employees are also not entitled to a public holiday where:

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

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

If the situation arises 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 situation should always be considered when an employee is leaving to determine whether it applies or not.

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

Usually where a public holiday falls on 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 again this can be decided by the employer in accordance with the options under section 21(1) of the Act above.