It is unsurprising that many employers prefer employees to take annual leave while on furlough leave, mainly to prevent them accruing potentially eight months’ worth of holiday being due when they return to work or their employment ends.
The government’s furlough (job retention) scheme is now going to run until the end of October 2020. There has been debate about the legitimacy of employers requiring employees to take annual leave while on furlough leave.
The government has finally published guidance which states that employers can compel employees to take annual leave during furlough leave. It provides that the required notice periods are: “double the length of the holiday if the employer wishes to require a worker to take holiday on particular days”.
The guidance does make the important point that:
“If an employer requires a worker to take holiday while on furlough, the employer should consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday”.
Holiday pay, whether the worker is on furlough or not, should be calculated in line with current legislation, which is based on a worker’s usual earnings. The underlying principle is that a worker should not be financially worse off through taking holiday. Where a worker has regular hours and pay, their holiday pay would be calculated based on these hours. If they have variable hours or pay, their holiday pay is calculated as an average of the previous 52-weeks of remuneration excluding weeks in which there was no remuneration.
If you require any assistance with annual leave we can help. Contact our employment law team on 01522 561020 and we will arrange an appointment for you.
Carry over of leave
The government has passed recent legislation to ensure businesses have the flexibility they need to respond to the coronavirus pandemic and to protect workers from losing their statutory holiday entitlement. These regulations enable workers to carry holiday forward where the impact of coronavirus means that it has not been reasonably practicable to take it in the leave year to which it relates.
“Where it has not been reasonably practicable for the worker to take some or all of the 4 weeks’ holiday due to the effects of coronavirus, the untaken amount may be carried forward into the following 2 leave years. When calculating how much holiday a worker can carry forwards, employers must give workers the opportunity to take any leave that they cannot carry forward before the end of the leave year.”