Since the Prime Minister’s announcement on the evening of Monday 4 January, putting the country back into lockdown, I have been asked a number of questions relating to annual leave and, specifically, whether an employer can require an employee to take annual leave during furlough.
Generally, employers can require employees to take a period of annual leave during the coronavirus (COVID-19) outbreak, provided that they give the employee the required notice. This is unless there is an agreement to the contrary (such as in the employee’s contract or a collective agreement). As previously advised, the employer must give the employee a period of notice at least twice as long as the period of leave it requires them to take. For example, if the employer requires the employee to take one week’s annual leave, they must give them at least two weeks’ advance notice.

Where an employee is furloughed during lockdown, it is less certain that the employer can require them to take annual leave (although the need to pay employees their normal weekly pay during a period of annual leave may mean this is an unattractive option for many employers in any event).
The most up-to-date government guidance on Holiday entitlement and pay during coronavirus (COVID-19) states that:
“If an employer requires a worker to take holiday while on furlough, the employer 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, relaxing and enjoying leisure time, which is the fundamental purpose of holiday.”
While case law has found that employees can be required to take annual leave at a time when they would not otherwise be working, it is not clear if the same principles would apply during furlough in a lockdown situation. Therefore, the safest option for an employer wishing to avoid the risk of a dispute is not to require employees to use their annual leave during furlough for the foreseeable future.

However, this does not mean that an employer cannot request employees to use their holiday whilst furloughed but, should this be the preferred option, they should seek their agreement to this, rather than imposing a period of annual leave on them. Employees in receipt of reduced pay may indeed be happy to take annual leave while they are furloughed, as this leave period would be on full pay.
As you will be aware from my previous updates, employees will be able to carry over unused leave that has been accrued during the period of the COVID-19 pandemic. Last year, the government passed new emergency legislation to ensure that businesses have the flexibility they need to respond to the pandemic and to protect workers from losing their statutory holiday entitlement. These new regulations enable workers to carry holiday forward where the impact of COVID-19 means that it has not been reasonably practicable to take it in the leave year to which it relates.

Where it has not been reasonably practicable for the worker to take some or all of the 4 weeks’ holiday due to the effects of coronavirus, the untaken amount may be carried forward into the following 2 leave years. When calculating how much holiday a worker can carry forwards, employers must give workers the opportunity to take any leave that they cannot carry forward before the end of the leave year.

As always, give me a call should you require any further information or advice on the above, or on any other employment matter.