The guidance relates to the statutory holiday (5.6 weeks), not any additional contractual holiday entitlement that HEIs may provide.
Although the HE sector has not been able to utilise the Coronavirus Job Retention Scheme to the same extent as many other sectors, some HEIs do have employees on furlough.
The guidance clarifies that employees on furlough can take holiday without disrupting their furlough.
HEIs can require furloughed employees to take holiday by giving them notice equivalent to double the length of the holiday they wish the employee to take. Employers can also refuse a request by a furloughed employee to take leave.
Before requiring an employee to take holiday whilst on furlough, HEIs "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".
The guidance includes a helpful section in relation to bank holidays.
Where necessary, employers can require employees who would usually take bank holidays as holiday to work instead, provided the requisite period of notice is given. However, employers must ensure that employees still receive their statutory holiday entitlement of a minimum of 5.6 weeks' holiday for the year.
Whether or not an employee is on furlough, holiday should be calculated to reflect the pay that the employee would have earned if he/she had been at work and working. Therefore, if an employee is receiving reduced pay whilst on furlough, the HEI will need to make his/her pay up to full pay for any periods of holiday.
In order to give employers flexibility to respond to the coronavirus pandemic and protect employees' rights to statutory holiday, the Government has passed legislation to allow employees to carry forward the 4 weeks' statutory holiday under the Working Time Directive (or part of it) into the following 2 leave years. This is if it is not reasonably practicable for the employee to take all or part of the leave due to the effects of coronavirus.
These provisions could be helpful for HEIs where, due to the nature of their roles and the need to respond to the coronavirus pandemic, employees are unlikely to be able to take all of their holiday entitlement in the current leave year.
The guidance says that whether or not it is 'reasonably practicable' for employees to take leave will depend on various factors including:
The guidance does however state 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 confirms that generally, employers remain able to require employees to take annual leave to ensure that holiday is taken in the leave year to which it relates.