Furloughed, pregnanct and holiday allowance

zoelouisexo

I work full time but was furloughed from 14th April. My employer has text me to say I need to take all my accrued annual leave from the start of January to the end of June, this works out 12.5 days annual leave to be booked and taken by 31st June. As there is no sign of our office opening anytime soon so we will be expected to take more until we go back, if I am expected to go back at all before my maternity starts. 
I am 19 weeks pregnant due in October and the law states I am able to carry over up to 28 days annual leave to next year. Where do I stand? 
Any advice will be appreciated. 

Thrugelmir

Employers are within their rights to ask their employees to take holiday. When companies reopen they need to generate revenue to pay their bills. Furloughing has come at a huge cost to the economy. There's not going to a light switch moment and everything is going to return to normal. Challenging times lie ahead for employees and employers alike. 

LilElvis

Just to point out that holiday pay will need to be paid out at 100% of your normal rate, whether you are still on furlough or back at work.

Jeremy535897

Everybody keeps quoting this 100% of normal rate, but I don't know where it comes from. Like furlough, holiday pay is calculated differently for a "fixed rate" employee compared with a "variable pay" employee. If your contract has been amended to reduce your pay to 80% of your old salary, and you are on a regular monthly salary, your holiday pay will arguably be based on your new 80% salary, which is the salary payable at the "calculation date" (the beginning of the holiday). Regulation 16 of the Working Time Regulations 1998 applying section 221(2) Employment Rights Act 1996. The only argument against this I can see is section 224, which applies the variable pay rules to contracts with no normal working hours (you work no hours when on furlough), but that is not designed for this scenario.

Variable pay employees are paid holiday pay based on their average wage over the previous 52 weeks (up to 104 weeks in certain circumstances), but as more weeks are paid at 80% in cases where the contract of employment has been amended, this average will fall.

In better times, if you got a pay rise, you'd expect to get holiday pay at the new rate if you were on a regular salary.

I'm not a lawyer, and I am probably missing something, but nobody so far has quibbled with what I have said. The government clearly sees an issue when it says:

"Furloughed workers

An employer should not automatically pay a worker on holiday the rate of pay that they are receiving while on furlough, unless the employer has agreed to not reduce the worker’s pay while on furlough.

If a worker on furlough takes annual leave, an employer must calculate and pay the correct holiday pay in accordance with current legislation - see the standard guidance. Where this calculated rate is above the pay the worker receives while on furlough, the employer must pay the difference. However, as taking holiday does not break the furlough period, the employer can continue to claim the 80% grant from the government to cover most of the cost of holiday pay."

The words in bold appear to envisage circumstances where holiday pay calculation could be the same as furlough pay, even where pay has been reduced. From:

https://www.gov.uk/guidance/holiday-entitlement-and-pay-during-coronavirus-covid-19

LilElvis

Jeremy535897 said:

Everybody keeps quoting this 100% of normal rate, but I don't know where it comes from. Like furlough, holiday pay is calculated differently for a "fixed rate" employee compared with a "variable pay" employee. If your contract has been amended to reduce your pay to 80% of your old salary, and you are on a regular monthly salary, your holiday pay will arguably be based on your new 80% salary, which is the salary payable at the "calculation date" (the beginning of the holiday). Regulation 16 of the Working Time Regulations 1998 applying section 221(2) Employment Rights Act 1996. The only argument against this I can see is section 224, which applies the variable pay rules to contracts with no normal working hours (you work no hours when on furlough), but that is not designed for this scenario.

Variable pay employees are paid holiday pay based on their average wage over the previous 52 weeks (up to 104 weeks in certain circumstances), but as more weeks are paid at 80% in cases where the contract of employment has been amended, this average will fall.

In better times, if you got a pay rise, you'd expect to get holiday pay at the new rate if you were on a regular salary.

I'm not a lawyer, and I am probably missing something, but nobody so far has quibbled with what I have said. The government clearly sees an issue when it says:

"Furloughed workers

An employer should not automatically pay a worker on holiday the rate of pay that they are receiving while on furlough, unless the employer has agreed to not reduce the worker’s pay while on furlough.

If a worker on furlough takes annual leave, an employer must calculate and pay the correct holiday pay in accordance with current legislation - see the standard guidance. Where this calculated rate is above the pay the worker receives while on furlough, the employer must pay the difference. However, as taking holiday does not break the furlough period, the employer can continue to claim the 80% grant from the government to cover most of the cost of holiday pay."

The words in bold appear to envisage circumstances where holiday pay calculation could be the same as furlough pay, even where pay has been reduced. From:

https://www.gov.uk/guidance/holiday-entitlement-and-pay-during-coronavirus-covid-19

Sorry, but I totally disagree with your interpretation and believe it to be abundantly clear. Furlough rate should not be used to calculate holiday pay unless furlough rate equals Inormal pay - i.e the employer is "topping up" the furlough rate to 100%.The

Edit: The section that then follows makes it clearer still - that holiday pay must be calculated in line with legislation (ie as normal) but that the 80% grant can still be claimed with the employer paying the difference.

Jeremy535897

I hope you are right, but if you have had your pay reduced in your contract of employment to 80% and are still working (as many people have), why is that now not your "normal" pay now (the legislation uses the pay entitlement at the beginning of the holiday to calculate holiday pay for fixed rate employees, unlike furlough, which looks back to 19 March)? If you had had a pay rise, you would certainly argue that the new rate of pay should apply to holiday pay.

If I am right, why should furloughed workers whose wage has been reduced to 80% be better off than people working whose wage has been reduced to 80%? I am sure I must be missing something.

sharpe106

Acas seem quite clear that you should be paid holiday pay in full. Otherwise every company would be getting everybody to take holidays and save themselves a fortune.

 Furloughed workers must get their usual pay in full, for any holiday they take.

 https://www.acas.org.uk/coronavirus/using-holiday

  Although unti the government make it clear one way or it is tested in court it would be one of many that nobody really knows for sure.

Jeremy535897

I think that might apply to a temporary reduction in a furlough agreement, but where all staff, whether furloughed or not, have taken a 20% pay cut in their contracts of employment, I'm not so sure.