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Thursday, May 14, 2020
The Department for Business Enterprise and Industrial Strategy has published guidance on Wednesday 13 May about holiday entitlement. It is guidance and subject to interpretation by the Courts but as I happen to agree with it, I venture to suggest it is good guidance.
Key points to bear in mind are as follows:
- Holiday entitlement continues to accrue during the period of furlough.
- The employee can elect to take holiday and the employer can require the employee to take holiday provided the employer gives twice the notice of the holiday to be taken. In requiring someone to take holiday, the employer needs to bear in mind any restrictions to which the individual is subject and which might prevent them from enjoying a period of rest and leisure which is the purpose of holiday. Therefore, if someone is having to self isolate, that is not the time in which to require them to take holiday.
- Holiday pay will be at the normal remuneration rate. Therefore, we need to top up the furlough pay of the period of holiday to that normal remuneration rate. It will not impact upon the employer’s ability to recover furlough pay from HMRC.
- There are in place new working time coronavirus regulations which provide that anything up to four weeks holiday can be taken forward if it is not reasonably practicable for the employee to take that holiday during the period of holiday year. Frankly, it should be reasonably practicable for an individual to take holiday. However busy the employer might be, there is no reason why an individual cannot take one weeks’ holiday and have their work covered by colleagues for that one week or for agency staff to be recruited. Lord knows, they will need and be looking for the work.
- If someone has taken holiday but have not received the enhanced holiday pay during a period of furlough then that is not likely to count as a period of holiday.
So the moral of the story is use it or lose it.
Written by Robert Gibson, Senior Consultant - Employment Law
Robert is a Senior Consultant at Samuel Phillips and specialises in employment and business matters. He advises in relation to employment and shareholder disputes, including pensions and related issues.
