9th April 2020
I’ve had a number of clients ask what to do about annual leave during this crisis. There are a number of issues here which I would be happy to talk through with you, but in the meantime, here are a few pointers:
Can I insist employees take some of their annual leave whilst they are furloughed?
As employment law continues to apply, should you wish to enforce an employee to take annual leave you must give them double the amount of notice of the leave as the length of leave you wish them to take. g. if you want them to take 4 days leave you must give them 8 days notice.
The point of taking holiday whilst furloughed still has not been completely clarified. In fact, ACAS has changed its guidance three times so far!
Currently (9th April), the ACAS guidance says that employees can take holiday whilst furloughed, including bank holidays and that they must be paid normal pay for holidays. Their guidance does not cover the specific question of whether an employer can force an employee to take holiday when furloughed, but it does say an employer and employee should discuss if an employee has to take holiday which implies it might happen.
Furlough leave is sort of equivalent to being on garden leave and during garden leave we can ask people to take holiday (given sufficient notice). There is case law which suggests that it might be an ‘abuse’ to ask an employee to take holiday during this crisis but we won’t know until someone claims in an tribunal – let’s avoid that one!
Until further guidance is issued by the government, the safest approach (and my advice) is when an employee is furloughed for three weeks, at the same time tell them that week four will be holiday and that they will then be furloughed again. You must ensure that you ask their permission each time you furlough if you don’t have a clause in your contract to allow you to do this.
What are the new regulations about carrying over holiday?
New regulations have come into force during this crisis which allows employers to allow holiday to be carried over for two years. Previously the 28 days could not be carried over and had to be taken.
This will help those employers who cannot afford to pay holiday at this time to gradually allow employees to take holiday rather than having a glut on their return to work. Please note that you do not have to agree to employees carrying over holiday unless your contact states this but you must allow them the opportunity to take their statutory holiday.
What about those who are on other types of leave?
Those on sick leave and maternity/adoption/shared parental/paternity leave cannot be asked to take holiday.
What about payment for annual leave?
This remains the same as you would normally pay for annual leave. So if you are paying the 80%, you would need to increase the pay to whatever you would normally pay them for holiday.
Please don’t forget that holiday pay can include overtime and commission provided it is regular and averaged out over the previous 12 months (from 6 April 2020). However, this is only for the 20 days of ‘European’ holiday. The other 8 additional days and any contractual days of holiday in excess of this are not covered by this ruling.
So, if you have employees who earn significant commission you may want to specify that their contractual holiday is used up first when commission does not have to be paid and then the 20 days ‘European holiday’ when it does. Please check that your contract allows you to do this.
Further detailed advice can be found here:
https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme
ACAS also provides guidance:
Please note that this advice is current as of today. As you know, the situation is changing daily and this document will probably be out of date tomorrow! For the most up to date information please contact me or click on the link to the government website above.
If you have any questions or would like help, please don’t hesitate to get in touch with me.
07949 552403
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