Furloughed Staff and Holiday – What is the guidance?
A question being frequently asked by our employer clients during the current coronavirus pandemic is whether they can require furloughed staff to take holiday during the period of furlough. There is an obvious advantage for many businesses to do this where they can currently claim 80% of workers’ pay (subject to the £2,500 cap) from the state under the Coronavirus Job Retention Scheme which has recently been extended to the end of October. In addition, requiring staff to take holiday now may alleviate the problem of holiday entitlement building up during furlough which then has to be fitted in after furlough ends.
Government guidance published on 13 May 2020 sheds some light on this potentially difficult area. It states that, in most cases, employers should be able to require staff to take holiday during furlough provided they top up workers’ pay to their normal rate (assuming the employer is not topping up anyway). The guidance rightly points out that an employer considering this should ask itself whether the worker can rest and relax during the leave they are being required to take which is the main purpose of holiday. This reflects the position established in EU caselaw.
It is important to note that the Government guidance is not legally binding on courts and employment tribunals who will decide cases based on the law as applied by them to the individual facts of the case before them.
We can certainly think of situations where an employee could quite reasonably claim that they are not able to rest and relax during an enforced period of holiday in the furlough period. For example, if the worker was a single parent with children of school age who, due to the lockdown, are at home being supervised by that parent. Alternatively, consider a worker who is self-isolating at home because they have a vulnerable elderly person who they are caring for in their household during the lockdown. Those are cases where the legal position is unclear and where an individual could potentially bring a claim against the employer at a later stage if they tried to assert a right to take holiday which was refused by the employer.
We would therefore advise employers not to make assumptions on the issue and to consider carefully before attempting to force workers to take annual leave. A prudent approach, especially in certain cases, may be to agree the holiday with the worker in advance.
If you require advice on this or any other employment law related issue, please contact the Employment Team at Downs Solicitors LLP.