Holiday & COVID-19Published on: 19 May 2020
The government has published guidance on workers' entitlement to holiday and holiday pay during the COVID-19 pandemic. It addresses the position of workers who continue to work and those who have been placed on furlough under the Coronavirus Job Retention Scheme (“the Scheme”). However, it has no legal effect, and tribunals are not required to follow it when deciding holiday cases.
The new guidance confirms that furloughed workers accrue holiday like any other worker, and can take holiday subject to the usual notice provisions, without breaking the furlough period. However, employers must pay normal pay during holiday, and may therefore need to top up any furlough pay. This much has been stated in the government’s separate guidance on the Scheme for some time – but the guidance on the Scheme is silent on when employers can compel furloughed employees to take holiday.
On this point, the new guidance states:-
"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."
The caveat reflects principles set out in European case law, which call into question whether an employer can force a worker to take holiday at all during the “lockdown”, not merely during furlough - but the government does not offer an answer to the question and so may be adding to, rather than helping to resolve, confusion among employers as to their legal obligations.
Our view is that employers can compel employees to take holiday during the period of restrictions on social movement, including employees on furlough, on the basis that they are not prevented from resting or relaxing or (albeit perhaps not as much as in normal circumstances) enjoying a period of leave. The more the “lockdown” measures are relaxed (as they have started to be), the stronger this argument becomes.
To confirm, as indicated in the new guidance, unless a contract of employment or some other workforce agreement provides otherwise, if an employer wishes to compel an employee to take part of their holiday entitlement under the Working Time Regulations, they must provide notice of at least twice the duration of the holiday to be taken.
The guidance also deals with the practical effects of the Working Time (Coronavirus) Amendment Regulations 2020, which permit the carry-over of any untaken leave due to COVID-19. It gives examples of when it might be considered not reasonably practicable to take holiday during the leave year. It suggests that for furloughed workers, carry-over would rarely be justified if they were able to take holiday during the furlough period (although it might be justified if the employer could not afford to top up their pay).
The guidance also deals with holiday rights for agency workers.