Coronavirus (COVID-19) Update 14

Bank Holidays and Furlough Leave

As we approach two bank holidays I have been asked what should happen about taking and paying for the Bank Holidays for those on Furlough Leave.

The government are yet to issued any guidance on this.  Employment lawyers disagree about it, and there are some very technical arguments going on.

However ACAS has recently revised its guidance.  The guidance can be found at: ACAS Guidance – Holiday and Furlough Leave

Whilst it states that Furlough Leave is one of the examples when annual leave cannot be taken and should be allowed to be carried over, in relation to bank holiday it now states “Employees and workers may still be required to use a day’s paid holiday for bank holidays, including when they’re furloughed.”

ACAS advised that if the bank holidays form part of the 5.6 weeks statutory annual leave entitlement then they can be required to be taken.

If they are additional to the statutory entitlement then it will depend what is in the contract.

If an employee would normally work on a bank holiday then the employer should advise the employee whether or not they are required to take the bank holiday whilst they are on Furlough Leave or some other date.

ACAS advise that the pay for the Bank Holiday should be topped up to normal pay, not the Furlough 80%.  You should still be able to claim for the 80% element of the Furlough Leave Pay for the Bank Holidays.

Whilst new government advice may subsequently contradict the ACAS guidance, at present I would advise:

You write as soon as possible to all furloughed employees to confirm:

  • That they are required to take the bank holidays as part of their annual leave whilst on Furlough Leave.
  • That they cannot accrue or carry over those days.
  • That the taking of the bank holidays does not constitute a break in their Furlough Leave.
  • That you will top up payments for those days to 100% of their normal pay. (Remember where pay varies that it will now be the new “52 week average” that should be used to calculate normal pay) 

If you have any particular queries please do not hesitate to contact David Scott.