Furloughed and lost all holiday allowance / entitlement

Hughesy49ers

Hi EPM-84,
My holiday year is 1st April 2020 to end of March 21. So having being furloughed towards the end of March, I have about 10 days holiday due, which now that I'm being made redundant at end of July, would have been a bit of a help monetary wise, knowing I would be getting holiday pay on top of standard redundancy money. Madmattuk confirmed they can make me take a week's holiday while in furlough, I just wasn't sure whether they could also make you take it when in Consultancy redundancy phase.

poppy12345

Hughesy49ers said:

Hi Wifey101 and all that helped you out. I wondered a similar thing. I've been on furlough since March until end of July. Today I found out Im to be made redundant. A while back there was a standard letter asking if people could take a week's holiday w/c June so that there wasn't a big influx of staff wanting holiday when all returning to work. Now that there is no returning to work for me, they are still saying we need to take holiday on 22nd (obviously this is to reduce the redundancy pay out), can they enforce this week's holiday? I have 12 days holiday left?

Thanks
Hughesy49ers (joined the forum today so a bit of a novice)

Your question has been answered on your other thread here. https://forums.moneysavingexpert.com/discussion/6157309/forced-to-take-holiday-while-on-furlough-while-in-redundancy-consultation-phase#latest Asking the same question on various threads isn't helpful because it gets very confusing.

getmore4less

MadMattUK said:

getmore4less said:

Have they claimed the furlough money and then said you are on holiday and topped that up?
I don't think that is part of the scheme.
in your position if that is what they have done I would check the scheme carefully and report them if they have cheated it.

That is entirely allowed under the scheme, the rule is that any holiday must be paid at 100%, but that can be 80% furlough and 20% top up. 

If that was allowed under the rules then all employers should have done it. 
Holidays are a liability, great only having to pay 20% of that liability. 

getmore4less

Jeremy535897 said:

Just to clear up a few misconceptions here.
Bank holidays are covered bu UK employment law, which provides for a minimum holiday entitlement of 5.6 weeks (4 weeks plus 8 bank holidays). The rate of holiday pay depends on whether you are a fixed rate employee or a variable pay employee. Fixed rate employees get their regular salary, variable pay employees get an average of the last 52 weeks paid wages. This is a simplification.

Overlaying this is EU case law that provides that you are not supposed to be worse off on holiday than if you were at work. It is really designed to cover overtime and commission etc, but has been taken to mean that you must be paid your pre furlough rate of pay for holidays. There is some doubt about this, but everyone seems to be going along with it, although it only applies to the 4 weeks, not bank holidays. Unless your contract of employment provides that bank holidays are just treated as flexible holiday with the other 4 weeks, I don't think an employer can make you work, say, Christmas 2020 and take holiday now instead while on furlough.

There is a lot of guidance on GOV.UK. This is quite comprehensive:
https://www.gov.uk/government/publications/calculating-holiday-pay-for-workers-without-fixed-hours-or-pay/calculating-holiday-pay-for-workers-without-fixed-hours-or-pay--2

Bank Holiday have only been a statutory requirement for a few in the past. 

Holiday rights for all are relatively new. 
The current legislation(working time regulations) covering holiday have no mention of bank Holidays. 


Any bank holiday entitlements are contractual not statutory. 

Jonesy1977

Wifey101 said:

Hello Poppy12345. They gave enough notice and 100%.
But instead of accepting their offer, could I have had the 80% furlough money while off and retained my holiday?

So you have been furloughed as the business does not have the work for you to do during the crisis, they have asked you (and paid you) to take your accrued holiday during this period giving you the required notice.  The company will bring you back from Furlough as soon as they can afford to and when business levels increase.  At this point they will need you.............to do the work, that makes product, to sell to customers, to pay the bills that keep you.............employed.   You could of course just tell them how badly you feel have been treated and demand that they allow you to take your holidays.  Good luck with that!

Jeremy535897

getmore4less said:

Jeremy535897 said:

Just to clear up a few misconceptions here.
Bank holidays are covered bu UK employment law, which provides for a minimum holiday entitlement of 5.6 weeks (4 weeks plus 8 bank holidays). The rate of holiday pay depends on whether you are a fixed rate employee or a variable pay employee. Fixed rate employees get their regular salary, variable pay employees get an average of the last 52 weeks paid wages. This is a simplification.

Overlaying this is EU case law that provides that you are not supposed to be worse off on holiday than if you were at work. It is really designed to cover overtime and commission etc, but has been taken to mean that you must be paid your pre furlough rate of pay for holidays. There is some doubt about this, but everyone seems to be going along with it, although it only applies to the 4 weeks, not bank holidays. Unless your contract of employment provides that bank holidays are just treated as flexible holiday with the other 4 weeks, I don't think an employer can make you work, say, Christmas 2020 and take holiday now instead while on furlough.

There is a lot of guidance on GOV.UK. This is quite comprehensive:
https://www.gov.uk/government/publications/calculating-holiday-pay-for-workers-without-fixed-hours-or-pay/calculating-holiday-pay-for-workers-without-fixed-hours-or-pay--2

Bank Holiday have only been a statutory requirement for a few in the past. 

Holiday rights for all are relatively new. 
The current legislation(working time regulations) covering holiday have no mention of bank Holidays. 


Any bank holiday entitlements are contractual not statutory. 

See Working Time Regulations 1998 regulation 13A. This is intended to cover the 8 bank holidays a year. Regulation 13 covers the 4 weeks. Apparently the EU case law on normal wages does not cover this provision. I think if an employer always gives bank holidays as holiday, the notice requirement will be met, but I agree that an employer does not have to give bank holiday days as holiday:

13A Entitlement to additional annual leave

(1) Subject to regulation 26A and paragraphs (3) and (5), a worker is entitled in each leave year to a period of additional leave determined in accordance with paragraph (2).

(2) The period of additional leave to which a worker is entitled under paragraph (1) is—

(a) in any leave year beginning on or after 1st October 2007 but before 1st April 2008, 0.8 weeks;
(b) in any leave year beginning before 1st October 2007, a proportion of 0.8 weeks equivalent to the proportion of the year beginning on 1st October 2007 which would have elapsed at the end of that leave year;
(c) in any leave year beginning on 1st April 2008, 0.8 weeks;
(d) in any leave year beginning after 1st April 2008 but before 1st April 2009, 0.8 weeks and a proportion of another 0.8 weeks equivalent to the proportion of the year beginning on 1st April 2009 which would have elapsed at the end of that leave year;
(e) in any leave year beginning on or after 1st April 2009, 1.6 weeks.

(3) The aggregate entitlement provided for in paragraph (2) and regulation 13(1) is subject to a maximum of 28 days.

(4) A worker’s leave year begins for the purposes of this regulation on the same date as the worker’s leave year begins for the purposes of regulation 13.

(5) Where the date on which a worker’s employment begins is later than the date on which his first leave year begins, the additional leave to which he is entitled in that leave year is a proportion of the period applicable under paragraph (2) equal to the proportion of that leave year remaining on the date on which his employment begins.

(6) Leave to which a worker is entitled under this regulation may be taken in instalments, but it may not be replaced by a payment in lieu except where—

(a) the worker’s employment is terminated; or
(b) the leave is an entitlement that arises under paragraph (2)(a), (b) or (c); or
(c) the leave is an entitlement to 0.8 weeks that arises under paragraph (2)(d) in respect of that part of the leave year which would have elapsed before 1st April 2009.

(7) A relevant agreement may provide for any leave to which a worker is entitled under this regulation to be carried forward into the leave year immediately following the leave year in respect of which it is due.

(8) This regulation does not apply to workers to whom the Agricultural Wages (Scotland) Act 1949 applies (as that Act had effect on 1 July 1999).

Jonesy1977

getmore4less said:

MadMattUK said:

getmore4less said:

Have they claimed the furlough money and then said you are on holiday and topped that up?
I don't think that is part of the scheme.
in your position if that is what they have done I would check the scheme carefully and report them if they have cheated it.

That is entirely allowed under the scheme, the rule is that any holiday must be paid at 100%, but that can be 80% furlough and 20% top up. 

If that was allowed under the rules then all employers should have done it. 
Holidays are a liability, great only having to pay 20% of that liability. 

A great many have and the reason is to protect companies and jobs.   There will be a huge and unprecedented number of job losses as a result of this, there would be a great many more if everyone accrued holiday and then expect companies to allow them to take paid leave at the point at which business can open up fully.