Unfortunately, there is still no definitive response in the latest Government guidance about how to deal with annual leave periods whilst someone is on furlough leave.
We know that holiday entitlement continues to accrue whilst on furlough leave and that there has been an amendment to the Working Time Regulations to enable the first 20 days’ holiday to be carried into the next two leave years if it cannot be taken during this leave year as a result of coronavirus.
However, how should pre-booked holidays, or bank holidays be dealt with during this period?
The first thing to remember is that under the law there is no “right” to take the bank holidays as annual leave – the right is only for full-time workers to have a minimum of 28 days’ annual leave in any leave year (with 8 of those days typically being assigned to the bank holidays).
Whether you need to assign the upcoming bank holidays as annual leave or whether they can be taken at a later date will depend on the terms of the individual contract, and we would recommend taking legal advice on your specific situation.
ACAS has updated its guidance on annual leave whilst on furlough which suggests that furlough and annual leave are not mutually exclusive. It is important to stress that this is not guidance set down in the government’s updates thus far, but the prevailing view of ACAS is that workers will be able to take annual leave (or be able to be told to take annual leave by employers) during the furlough leave period without it stopping the furlough leave period.
The ACAS guidance also states that “workers must get their usual pay for bank holidays”. Although we do not have a definitive answer on this, it seems that it would be sensible to pay 100% for holidays even if you are only paying 80% for furlough. This is the safest approach to avoiding future claims.
We would strongly recommend that you take legal advice on your particular circumstances, and please feel free to contact one of the Ashtons Legal Employment team for support.
This information is correct at 2.30pm on 6 April 2020.