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

suki1964

Surely you are talking about leave you already had acquired up till furlough day and any leave accrued till now? They can not make you take holiday that you haven't accrued

So whilst you are on furlough you are still accuring holiday pay same as you will be when you return to work

BarrySmart

Wow, that is harsh on your company's part, although they have every right.

[Deleted User]

suki1964 said:

Surely you are talking about leave you already had acquired up till furlough day and any leave accrued till now? They can not make you take holiday that you haven't accrued

So whilst you are on furlough you are still accuring holiday pay same as you will be when you return to work

They can make you take holiday from the current period, that means any holiday you have already accrued and any you will accrue until the end of the holiday allowance period. If you leave for any reason and you have used more holiday than you have accrued they are allowed to claw back holiday pay which has not yet been earned.
You do still accrue holiday whilst on furlough, but it is entirely at your employer's discretion when you are on paid holiday, they can make you take holiday at a time of their convenience up to your entire annual allowance.

jankers30

MadMattUK said:

They can make you take holiday from the current period, that means any holiday you have already accrued and any you will accrue until the end of the holiday allowance period. If you leave for any reason and you have used more holiday than you have accrued they are allowed to claw back holiday pay which has not yet been earned.
You do still accrue holiday whilst on furlough, but it is entirely at your employer's discretion when you are on paid holiday, they can make you take holiday at a time of their convenience up to your entire annual allowance.

So if a business forces people to take unaccrued holiday whilst on furlough and the employee then leaves the company/made redundant and the employee has to pay the unaccrued holiday pay back, is this all paid back to the employer or does the 80% go back to the Taxpayer who has paid the 80%?

sharpe106

Generally if you have taken too many holidays, it is taken out of any redundancy, notice period. So in theory the company would be one the benefit. I would very much doubt many companies would refund the taxpayer. Although as with many things there is nothing written about it. 

sharpe106

Jeremy535897 said:

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.

from the ACAS website
https://www.acas.org.uk/coronavirus/using-holiday
Although your explanation makes sense looking at it that way.  

Jeremy535897

sharpe106 said:

Jeremy535897 said:

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.

from the ACAS website
https://www.acas.org.uk/coronavirus/using-holiday
Although your explanation makes sense looking at it that way.  

I see they avoid the question as well by using the term "usual" pay. What does "usual" mean? It doesn't appear in the legislation either. The government guidance uses both "normal" and "usual". See https://www.gov.uk/guidance/holiday-entitlement-and-pay-during-coronavirus-covid-19
Note this. They are very careful not to say you simply use the pre-furlough rate:

"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."

sharpe106

Yes in a lot of things they have been very careful not to say things clearly in black and white. I guess all we can do is wait and see what the courts think when somebody takes it to court. 

Semple

click_451 said:

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?

As you've taken the majority of your annual leave, this might not apply to you. From what you've said it sounds like a company-wide email rather than an email specific to you. If lots of your colleagues haven't taken any annual leave yet, then the company obviously wishes for them to use up X amount whilst on furlough. 

I would ask your manager, and make it clear that you've already used up X amount of annual leave. 

It would certainly be unusual for an employer to insist on taking annual leave that is yet to be accrued. 

[Deleted User]

jankers30 said:

MadMattUK said:

They can make you take holiday from the current period, that means any holiday you have already accrued and any you will accrue until the end of the holiday allowance period. If you leave for any reason and you have used more holiday than you have accrued they are allowed to claw back holiday pay which has not yet been earned.
You do still accrue holiday whilst on furlough, but it is entirely at your employer's discretion when you are on paid holiday, they can make you take holiday at a time of their convenience up to your entire annual allowance.

So if a business forces people to take unaccrued holiday whilst on furlough and the employee then leaves the company/made redundant and the employee has to pay the unaccrued holiday pay back, is this all paid back to the employer or does the 80% go back to the Taxpayer who has paid the 80%? 

This would be clawed back at the full rate to the employer as that is how the system operates normally. In theory this could be used to "profit" from it as a business was making mass redundancies, but it would be complicated and highly dubious and the government may intervene in some way if it became anything more than an insignificant minority.