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April 16, 2020

Legal Issues – Annual Leave During Coronavirus

Despite lots of guidance from the Government, a glaring omission remains which is causing problems for employers across the country. Lots of us are likely to have existing holiday plans cancelled but all employees (furloughed or working) accrue holidays and the issue facing employers is how to avoid a stockpile later in the holiday year.

For employees working and providing important services to fight to the virus, details have been announced by the Government allowing leave to be carried over for the next 2 holiday years after the end of the current one. An underlying concern remains about their welfare – holiday leave is to ensure employees get a break and recharge the batteries and allowing carry over is at odds with that.

Of more pressing concern is dealing with employees on furlough leave. Employers already have the right (Regulation 15 WTR) to tell employees to take holidays (subject to giving appropriate notice).  Can they do that during furlough leave? As yet, no official guidance has been issued. What we have is a tweet from HMRC suggesting that employees can take holidays while on furlough leave and this will not interrupt or cancel furlough leave or impact on a grant application. Assuming that is correct, it would help to be formalised immediately.

Another employers’ issue is what should employees on holiday during furlough leave get paid?  80% (their “normal pay” during furlough leave) or 100% (holidays are accrued over a whole year of normal pay – being paid for holidays in full seems fair and something employees have earned). Again it appears that the answer is 100% but clarification would help. If the answer is 100%, it would certainly help employees cope with being on holiday during furlough leave knowing they would get 100% during the holiday period rather than their 80% furlough pay.

If you have any questions on any of the issues mentioned in the above article, please contact Russell Eadie.

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