Having barrelled into the world of employment law in March this year, the concept of ‘furlough’ is still developing in the UK and its interaction with other areas of employment law is still being explored. Particular uncertainty has – these last few months – hung over the relationship between furlough and annual leave.
As they grow more comfortable with the notion, many employers have now begun compelling furloughed employees to take annual leave, primarily to prevent a large build-up of annual leave which employees will want to take later in the year when they are, hopefully, all back at work. But what is the legal position in doing so?
Without further legislative instruments, employment lawyers can only rely on published Government guidance (link below) to understand how compelled annual leave works with furlough. According to this guidance, workers can take holiday whilst on furlough without it disrupting their period of furlough. However, it is advised that workers engage with their workforce before taking this action, explaining the reasons for wanting their employees to take their annual leave whilst on furlough, before they compel them to do so.
The Guidance suggests that employees should consider the following when requesting employees take holiday:
“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 usual notice periods prescribed by the Working Time regulations 1998 still apply, where employers are looking to compel a furloughed employee to take holiday; the notice required is twice as much as the period of holiday you require them to take.
As is often the case in employment law, circumstances and scenarios are best dealt with on a case-by-case basis, and the above is a broad and general statement of what is contained in Government guidance. If you are considering compelling your employees to take annual leave whilst they are furloughed, we would advise that you seek legal advice before doing so.
Guidance on holiday entitlement and COVID-19 – click here.
If you do wish to seek legal advice, please contact the Employment Department at Backhouse Jones on 01254 828300.