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Government Guidance on Annual Leave During Coronavirus

on Friday, 29 May 2020.

The Government recently released some further helpful guidance on managing annual leave during coronavirus (COVID-19).

The guidance can be found here.

What Clarification Does the New Guidance Provide?

The guidance relates to the statutory holiday (5.6 weeks), not any additional contractual holiday entitlement that HEIs may provide.

  • Taking Holiday During Furlough

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".

  • Bank Holidays

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.

  • Holiday Pay

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.

  • Carrying Annual Leave Forward

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.

Coronavirus HE blogs

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:

  • whether the employer has faced a significant increase in demand due to coronavirus, that would reasonably require the employee to continue to be at work and cannot be met through alternative practical measures
  • the extent to which the employer's workforce is disrupted by the coronavirus and the practical options available to it to provide temporary cover of essential activities
  • the health of the employee and how soon he/she needs to take a period of rest and relaxation
  • the length of time remaining in the employee’s leave year, to enable the employee to take holiday at a later date within the leave year
  • the extent to which the employee taking leave would impact on wider society’s response to, and recovery from, the coronavirus pandemic
  • the ability of the remainder of the available workforce to provide cover for the employee going on leave

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.

If you require specialist legal advice relating to the employment implications of coronavirus, please contact Jane Byford in our Higher Education team on 07909 656764, or complete the form below.

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