Holidays: government guidance during the coronavirus pandemic

It would have been unthinkable 3 months ago that we would need government guidance telling us how we should take holidays, and whether in doing so, we were truly “resting, relaxing and enjoying leisure time” which is said to be the fundamental purpose of holiday.

The Government has now issued guidance which sets out to explain how holiday entitlement and pay operate during the COVID-19 pandemic. It addresses the position both of workers who continue to work and those who have been placed on furlough leave under the Coronavirus Job Retention Scheme (CJRS).

The guidance addresses the following topics:

• Accrual of annual leave entitlement
• Taking holiday during furlough
• The rate of holiday pay
• The right to carry forward leave which could not be taken because of the crisis

Accrural of annual leaveentitlement

It has been made clear that furloughed workers continue to accrue entitlement to annual leave under the Working Time Regulations 1998, and that they can take holiday without bringing the period of furlough to an end. It has been suggested that employers can require workers to take holiday whilst on furlough, but “the employer should consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate would prevent a worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday”.

The guidance, therefore, does not give a clear view on whether holiday taken during furlough meets the definition of annual leave set down in European caselaw.

Holiday pay

Turning to holiday pay, the guidance states that holiday pay during furlough must be the correct holiday pay which the worker would normally receive. Therefore, this is based on normal pay and not any furloughed or reduced pay.

Carrying over holiday

With regard to carrying over holiday, a new law came into effect on 26th March. In summary, it provides that where it has not been reasonably practicable for a worker to take some or all of the basic 4 weeks annual leave due to the effects of Coronavirus, the untaken amount may be carried forward into the following 2 leave years. We can, therefore, expect disputes and caselaw on whether it was not reasonably practicable, or whether a worker simply chose not to take their leave and opted to carry over.

Relevant factors might include the following:

• Whether the business was facing a significant increase in demand due to Coronavirus that would reasonably require the worker to continue to be at work
• The extent to which the business’s workforce is disrupted by Coronavirus and the availability of practical optionsto the business to provide temporary cover of essential activities
• The health of the worker and how soon he or she needs to take a period of rest and relaxation
• The length of time remaining in the worker’s leave year
• The extent to which the worker taking leave would impact upon the wider society’s response to and recovery from the Coronavirus situation
• The ability of the remainder of the available workforce to provide cover for the worker going on leave

Interestingly, the guidance notes that for furloughed workers, they would be unlikely to need to carry forward statutory annual leave and will be able to take it during the furlough period. Many employers are now compelling employees to take annual leave whilst on furlough, as this will prevent them accruing potentially 8 months’ worth of holiday. This is because furlough is now known to last from 1st March to 31st October.

We will continue to keep you updated on these issues. For advice on this or any other aspect of employment law please contact Paul Grindley at Winston Solicitors LLP on 0113 320 5000 or email paulg@winstonsolicitors.co.uk