CORONAVIRUS AND HOLIDAY LEAVE

Many employees have not been able or have not wanted to take holiday leave since the start of the Covid pandemic. They may now be nearing the end of their holiday year and employees and employers must decide what to do about holidays.

Employees are entitled to a minimum of 5.6 weeks’ holiday per year, and this continues to apply to all employees, whether they are working their usual hours, or whether they are on furlough or flexible furlough. The right to holiday leave and to be paid normal pay during holiday leave remains unchanged by Covid, but this has raised practical problems where employees have probably been unable to go away on holiday or may have been unable to take time off because they are needed at work during the pandemic.So what should employers be doing about holiday leave?

Can an employer require employees to take holiday leave?

If an employer wants employees to take their full holiday leave within their current holiday year, then they can ask them to do so. Employees may be reluctant to take holiday when they are unable to book a holiday away and may want to carry it over. But from the employer’s point of view, they are unlikely to want their employees to have significant accrued holiday leave in the next holiday year as that may make it difficult to maintain adequate cover in the workplace, particularly if the workplace is likely to be busier when restrictions ease. An employer can require an employee to take leave, but must give them notice of this, which is equivalent to at least twice the period of holiday. Therefore, if the employer wants the employee to take one week’s leave, they must give them two weeks’ notice of this.

Can employees carry over leave?

If an employer is happy for employees to carry over their leave, then they can agree to this if the impact of the coronavirus means that it has not been reasonably practicable for employees to take their usual leave. This has been made possible under emergency legislation, The Working Time (Coronavirus) (Amendment) Regulations 2020.

In what circumstances can an employer agree to carry over leave?

There are multiple reasons why the pandemic may have prevented employees from taking holiday, such as an increase in demand in certain businesses, like supermarkets, or a reduction in the workforce on account of employees being furloughed, off sick, self-isolating, shielding, or being unable to work when the schools are closed. In such circumstances, employers and employees may want to take advantage of the option to carry over leave, and they can carry it over into the next two leave years.

What about employees who are on furlough leave?

An employee who is on furlough leave is still entitled to accrue holiday leave during the furlough period. If the employer does not want the employee to carry over accrued holiday leave, then they may require the employee to take their leave during furlough, with the required notice of twice the leave period. In that case, the employee will continue to be on furlough leave during their holiday and the employer can continue to claim furlough pay, but the employer must top up the employee’s pay to their usual 100% pay for any days taken as holiday, and that includes Public Holidays.

What about employees who are on flexible furlough?

Any hours taken as holiday leave are to be counted as furloughed hours rather than working hours. An employee on flexible furlough could request or be required to take holiday leave either on days when they would normally be working or on days when they would normally be on furlough leave. The employer will be entitled to claim furlough pay for the holiday leave days, and top it up to usual pay.

Can an employer put an employee on furlough leave in order to cover holiday?

No. An employee cannot be put on furlough leave just to cover their holiday. But if they are already on full furlough leave or flexible furlough, employers can benefit from the government’s payment of furlough pay for the holiday leave days.

If you would like further advice on this, or on any other employment matter, please contact Elaine Walker at : Elaine.Walker@mustoeshorter.co.uk, or on 01305 752747.

27th January 2021