I’m being made to take all my remaining annual leave during furlough

click_451

Hi. I’ve been furloughed and, as I work 24 hours (3days) per week at a visitor attraction, have no idea when We will be reopening. I’ve already taken a lot of my annual leave and had 7 days remaining for this year.  At the end of April we received an email saying that all furloughed employees would be required to take 2 weeks annual leave (or pro rata equivalent) In June plus take annual leave If we were due to work either of the May bank holidays. For me this equates to 7 days, which was all I had left. So this effectively leaves me without any leave at all for the rest of 2020. Can they do this please?

Jeremy535897

The legal situation is unclear. The practical answer is yes.

[Deleted User]

Yes they can, all that is required is that they give you two days notice for each day's holiday they are making you take, so 14 days notice to enforce a 7 day holiday.

Grumpy_chap

It's also pragmatic to do this - it could be the difference that saves your job.

Thrugelmir

Is the visitor attraction likely to open any time soon? 

click_451

We’ve got no idea when we’ll open again. My employer is a huge multinational so I guessed they’d be doing everything by the book but just wanted to check!

Jeremy535897

click_451 said:

We’ve got no idea when we’ll open again. My employer is a huge multinational so I guessed they’d be doing everything by the book but just wanted to check!

On this particular issue there is no "book". Most employers are assuming they can make a furloughed employee take leave with the requisite notice (twice the leave), and it will only be if there is a court case that this might change.

sharpe106

I think they are on a fairly safe bet there as even the government advice is that employees continue to accrue holiday as per the contract, so surely if that remains the same the rules for using it remain the same. Although granted they have only said that employees can take holidays not that employers can make them. But lets be honest who would want to take a day holiday for the equivalent of 20% of the salary when they are not working anyway and they could keep it to later on in the year 

Jeremy535897

sharpe106 said:

I think they are on a fairly safe bet there as even the government advice is that employees continue to accrue holiday as per the contract, so surely if that remains the same the rules for using it remain the same. Although granted they have only said that employees can take holidays not that employers can make them. But lets be honest who would want to take a day holiday for the equivalent of 20% of the salary when they are not working anyway and they could keep it to later on in the year 

One issue is that the contract itself may have been amended. Some companies have reduced all employees' wages to 80%, working or furloughed. In that case a fixed rate employee would only get holiday pay at 80%. A variable pay employee's holiday pay rate would be based on their previous 52 weeks' wage (up to 104 weeks in some cases). That will become more diluted by furlough as time goes on. The second issue is the status of furlough. You can't make people who are sick take leave instead of SSP, for example. Is furlough like SSP? That's what the courts might have to decide.

sharpe106

I agree courts might need to decide that and about notice pay as well. Although my reading of the below taken from the guidance is that it is normal pay, as this is only temporary. But as with many things it can be read many ways and until the courts say one way or another all a company can do is do what they think is right and rectify it later if wrong. 

Employees can take holiday whilst on furlough. Working Time Regulations require holiday pay to be paid at the employee’s normal rate of pay 

Jeremy535897

The word "normal" does not appear in the legislation except in terms of hours. See regulation 16 Working Time Regulations 1998, which import sections 221-224 Employment Rights Act 1996. To cut a very long story short, fixed rate employees' rate of holiday pay is their rate the day before holiday, and variable pay employees' rate of holiday pay is based on an average of the previous 52 to 104 weeks' pay (amended from 12 weeks from 6 April 2020). If your contract of employment has been temporarily altered by a furlough agreement, you might have an argument as a fixed rate employee that you still qualify for your pre-furlough rate of pay, but if your contract of employment has been amended down to 80% that is the relevant rate (or the new "normal" if you prefer). There is no backdating to 19 March as there is with furlough itself. Variable pay employees are better off, although over time furlough will dilute their holiday pay rate too. All this of course does not deal with the issue of whether you can make anyone on furlough take any holiday at all.