How to manage Bank Holidays for staff on Furlough

Furlough presents additional complication by where employers will need to ensure that they pay their staff correctly for a bank holiday.

Most of the UK has eight permanent bank holidays per year: New Year’s Day, Good Friday, Easter Monday, May Day, Spring Bank Holiday, Late Summer, Christmas Day and Boxing Day. However, Scotland has omissions and additions and Northern Ireland has two extra public holidays in relation to the bank holidays taken in England and Wales. The government has confirmed an additional UK bank holiday in 2022 to mark the Queen’s Platinum Jubilee.

Bank holidays and annual leave

How much do you as an employer know about employment law concerning bank holidays? Here are a few things that you really need to know:

•  There is no statutory right for employees to take bank holidays off work. Any right to time off depends on the terms of the employee’s contract of employment.

• When an employee works a bank holiday, there is no statutory right to extra pay – for example “time and a half” or double pay. Again, any right to additional pay depends on the terms of the employee’s contract of employment.

•  If they have employees currently on furlough, employers need to be careful around bank holidays. If, in the employment contract, bank holidays are included in holiday entitlement, employers have two choices. They should either pay the employee in full for the bank holiday that falls during furlough, or substitute it with a day’s annual leave to be taken at a later date. However, if the furloughed employee is not entitled to bank holidays off in their employment contract, a bank holiday will have no effect on their pay during furlough.

• A part-time worker has the right not to be treated less favourably than a comparable full-time worker. This includes entitlement to bank holidays. The best practice – and safest – approach to part-time employees is to give them a pro-rated allowance of paid bank holidays, irrespective of whether or not they normally work on the days on which bank holidays fall.

• If an employee is required to work on bank holidays under the terms of their employment contract, the employee cannot refuse to work, even for religious reasons.

  However, employers should be aware that a refusal to grant Christian employees time off for any of the bank holidays with religious significance could amount to indirect religious discrimination if it places them at a particular disadvantage when compared with employees of other faiths, or non-religious employees.

• If employers have worded contracts to say that employees are entitled to “statutory entitlement plus bank holidays”, this no longer denotes 20 days’ leave plus eight bank holidays.

  Following the increase in statutory minimum leave from four to 5.6 weeks back in 2009, this wording grants 28 days’ holiday with eight bank holidays on top. Check your employment contracts to determine if this is an issue.