New Government Guidance on Annual Leave During Coronavirus

This article summarises the key additional points to take away.

What Does the New Guidance Tell Us?

Taking Holiday During Furlough

• Workers on furlough can take holiday without disrupting their furlough.
• Employers can require furloughed employees to take leave or may refuse a request for them to take leave.
• Before requiring a worker to take holiday whilst on furlough, employers "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, or enjoying leisure time, which is the fundamental purpose of holiday."

Bank Holidays

• The guidance includes a helpful section covering bank holidays.
• Where necessary, employers can require workers who would usually take bank holidays as holiday to work instead, provided the requisite period of notice is given. Employers must however ensure that workers still receive their statutory holiday entitlement of a minimum of 5.6 weeks holiday for the year.
  
  

The Carry Forward of Annual Leave

• What is 'reasonably practicable' for the purposes of the new temporary law, enabling workers to carry over four weeks' leave into the next two leave years where it has not been 'reasonably practicable' for them to take that leave as a result of the effects of coronavirus, will depend on various factors including the following:
  

  - whether the business has faced a significant increase in demand due to coronavirus, that would reasonably require the worker to continue to be at work and cannot be met through alternative practical measures

  - the extent to which the business’ workforce is disrupted by the coronavirus and the practical options available to the business to provide temporary cover of essential activities

  - the health of the worker and how soon they need to take a period of rest and relaxation

  - the length of time remaining in the worker’s leave year, to enable the worker to take holiday at a later date within the leave year

  - the extent to which the worker taking leave would impact on wider society’s response to, and recovery from, the coronavirus situation

  - the ability of the remainder of the available workforce to provide cover for the worker going on leave
  
  

• The guidance does however clarify that: "Employers should do everything reasonably practicable to ensure that the worker is able to take as much of their leave as possible in the year to which it relates, and where leave is carried forward, it is best practice to give workers the opportunity to take holiday at the earliest practicable opportunity."
• The guidance states that furloughed workers are unlikely to need to carry forward statutory annual leave, as they will be able to take it during the furlough period. However they must be paid the correct holiday pay for any period of annual leave taken. The guidance notes that if, due to the impact of coronavirus on operations, an employer is unable to fund the difference between the Government Coronavirus Job Retention Scheme grant and the worker's normal remuneration, then it is likely the carry forward of holiday would be justified.
• The guidance confirms that generally, employers remain able to require workers to take annual leave to ensure that holiday is taken in the leave year to which it relates.
  
  

Furloughed Agency Workers

• The guidance also includes a section on holiday rights for furloughed agency workers.

If you require specialist legal advice relating to annual leave, please contact Ellie Boyd in our Employment Law team on 07393 14813, or complete the form below.