Bishop & Sewell
Flower

I need a holiday. Never have truer words been said.

Whether you are working from home or have been furloughed, the question of what to do about holidays is coming up again and again. There are no clear answers and guidance is appearing day on day. Guidance can only ever be that though and common sense calls and decisions are needed in the meantime.

Here are some of the questions I am hearing employees ask.

I can save up my holiday and use it later in the year or even next year, can’t I?

On 26 March the Government amended the Working Time Regulations to allow employees to carry over up to 4 weeks of unused statutory holiday into the next two holiday years where it is not reasonably practicable for employees to take holiday due to the effects of the corona virus.

My thinking is that this change was made with key workers providing essential services in mind where taking holiday could get in the way of the vital work they are doing. They should be protected and their holidays should not be lost. This makes complete sense.

But the amendment applies to all employees and this is causing confusion. What does “not reasonably practicable to take holiday” really mean?

Outside of the key workers categories, employers will take the view that they need their employees to take holiday during the crisis and that this right to carry over holiday is irrelevant. The idea behind the Government’s job protection scheme was always to save jobs and to help employers through this difficult economic time. Some employers are saying that they will simply not survive if they cannot insist on holiday being taken now rather than being stored up and carried over. They are also concerned about needing to pay out large sums of holiday pay on making potential future redundancies.

Employers are likely to require employees to take a proportionate amount of holiday during furlough leave and the normal rules about rollover of holidays in many companies will not change.

What will I be paid during holiday if I have been furloughed?

Holiday pay should be topped up to normal pay over and above the 80% covered by HMRC.

Can I cancel booked holiday?

Employers can decide whether or not to accept cancellations and they may choose not to. See my thoughts above about employers taking the view that holiday needs to be taken to save businesses. This will not be a popular decision and could touch on the future of the employment relationship, trust and confidence and loyalty.

So, I can be forced to take holiday during furlough leave?

It was always possible for employers to require employees to take holiday by giving twice the amount of notice of the holiday the employer was requiring the employee to take. But this is not everyday life.

There are different views about whether this can be done. Questions are being asked such as what is furlough leave exactly? Is it like sick leave? Employees cannot be required to take holiday during sick leave and this is an important right that cannot be overridden. But how does this get round the question of saving businesses if holidays cannot be taken and holidays are stored up and the implications of that? From a practical perspective, employees are signing furlough leave agreements agreeing to take proportionate amounts of holiday during furlough leave.

The reality from speaking to employees day to day at the moment is that they are just not in a strong negotiating position and are saying yes to changes to their employment contracts which would have been unthinkable only a few weeks ago to save their jobs.

Consultation and communication are key. As is compromise where possible. It is at times like this that we will see what is at the very heart of a workplace culture. Employers will be judged by their action not their policies.

For advice on employment matters, please contact Rhian Radia an expert from our Employment Team on 020 7631 4141 or email rradia@bishopandsewell.co.uk

The above is accurate as at 14 April 2020. The information above may be subject to change during these ever-changing times.

The content of this note should not be considered legal advice and each matter should be considered on a case by case basis.


Category: News | Date: 14th Apr 2020


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