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The Government has published guidance on holiday entitlement and holiday pay during the COVID-19 pandemic which addresses both the position of workers who continue to work, and those who have been placed on furlough leave under the Coronavirus Job Retention Scheme (CJRS).
The guidance confirms that furloughed workers accrue holiday like any other worker and can request and take holiday subject to the usual notice provisions, without breaking the furlough period.
Employers must pay normal pay during any holiday leave, and therefore will be required to top-up any shortfall between the furlough pay reimbursed through the CJRS, and the full pay the worker is entitled to (i.e. top up the additional 20%).
Employers may be able to require workers to take annual leave during furlough but 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 a holiday”.
Whilst the guidance does not categorically confirm whether an employer can force a worker to take annual leave whilst on furlough leave, best practice for employers would be to consider whether it would be reasonable to require a worker to take annual leave at a prescribed time and whether the worker would reasonably be able to rest, relax and enjoy their leisure time during the lockdown period.
Employers must still give notice if they are requiring a worker to take a holiday. This must be double the length of the holiday period required (i.e. where they are considering requiring staff to take one weeks’ holiday an employer will need to give their workers at least two weeks’ notice).
As part of a range of new legislation introduced to address the impact of the COVID-19 pandemic, the Working Time (Coronavirus) Amendment Regulations 2020 permit the carry-over of any untaken leave due to COVID-19.
To assist employers, the guidance provides examples of when it might not be reasonably practicable to take holiday leave during the year, and therefore should be carried over into the following year. It also confirms that in the case of furloughed workers, it would only be in rare instances justifiable to carry over holiday leave as the furloughed worker would be able to take holiday during the furlough period (albeit this may not be the case if the employer cannot afford to top up the furlough pay to their full holiday entitlement).
Due to the rapidly changing nature of the COVID-19 pandemic, Government guidance continues to evolve. We recommend that employers keep checking to ensure that they are following the most up to date guidance. Further, in addition to public guidance, there are always specific circumstances that individual employers must consider, such as a particular employee or employer arrangements or issues (contractual or otherwise). If in doubt, please take advice.