Holiday & Furlough – What are the rules?

We have been asked a few times over the last 2 weeks (since the announcement that the CJRS would be extended) what are the rules relating to holidays and the extended Coronavirus Job Retention Scheme will have on holidays taken in November and December 2020.

Holidays Accrued during Furlough

Firstly, whether you are furloughing now for the first time, whether it is full furlough or flexible, or whether you already furloughed these same staff earlier in the Spring. Holiday has accrued and does accrue when someone is furloughed. With the majority of employees receiving 5.6 weeks holiday per year, this means that someone working 5 days a week accrues 2.33 days each month.

Holidays can be carried forward

The Government amended the Working Time Regulations in late March to allow for up to 4 weeks leave to be carried over for up to 2 years.  See here.

When holiday is booked by the employee

The employer who has chosen to furlough their staff due to a business need can decide whether to honour holiday requests or to give the required notice to cancel them. The employer who receives new holiday booking forms from furloughed employees can choose whether to authorise or not authorise those requests.

During the pandemic it has been common for employees to request permission to cancel leave as they are no longer going away. Remember you do not have to agree to such a request if it is made within ‘double the amount’ of notice period. For example an employee finds out that their 2 week holiday won’t happen within 1 week of their first day of leave, they therefore can request their employer cancel their leave, but can’t insist.

If the employee does request to take leave whilst furloughed we know from the guidance that they will receive 100% of their normal remuneration when they are on holiday.  The employer may claim the 80% furlough back from the Government.

If you need letters to decline requests to cancel leave you will find them in our Letters Bundle here.

When the employer wants to require a holiday is taken

Employers faced with large amounts of accruing leave may wish to require employees take holiday when furloughed.

Weirdly the Government has said in the guidance that any time where the employee is flexibly furloughed can be counted as leave rather than the hours that are worked.  We assumed it would say that holiday must be working time and not furlough.

So if the employer wants to require someone takes leave they have to give double the amount of notice of the leave to be taken. For example if you require someone to take 5 days leave, you have to give 10 days notice in writing.

If you need a letter to require someone to take holiday you will find it in our letters bundle here.

In this instance if you require someone to take leave during their period of furlough you will pay them 100% of their normal remuneration and claim back the 80% furlough back from the Government.

What does the guidance say you cannot do?

The guidance states explicitly that an employer should not place an employee on furlough for a period simply because they are on holiday for that period.

So what happens if you have fixed holidays coming up?

Well given what we are told in the guidance about how furlough cannot be used, there is nothing to stop you requiring employees to take leave if they are already furloughed in December. You must give double the amount of notice as to the leave to be taken. If you are unsure if your staff realise that a period of leave is about to occur (i.e. a shutdown) give notice now and explain that they will receive 100% of their normal remuneration when they are on holiday.

You can find out more about the Government guidance on holiday and the CJRS here.