17/04/2020

Annual leave and Furlough at the same time? | Employment Law

James Monk - Colour

Many employees on Furlough have the unexpected chance to spend time at home and for some (but not everyone) this will be with their loved ones.  And while enforced time off work may feel like a break for some, for others it will not.  The thorny issue of whether employees can take or be made to take holiday leave during time spent on the Government’s Furlough scheme is as yet an unresolved question.

There are two issues at play.  The first is whether in law you can technically mix two types of leave, that is Furlough Leave under the Coronavirus Job Retention Scheme (CJRS) and a period of Holiday Leave.  The second issue is whether if you can mix types of leave, employers can still claim the grant for 80% of employees’ wages costs (capped) under the CJRS. 

Current ACAS Guidance on its website says “ Employees or workers who are temporarily sent home because there’s no work (‘furloughed workers’), can request and take their holiday in the usual way, if their employer agrees. This includes bank holidays.”  This would seem to imply you can mix the two types of leave and it is hoped that the Government will clarify shortly whether the CJRS can be used to fund such leave.  Irrespective, most agree that employees taking annual leave whilst on Furlough should be paid their normal pay which includes bonuses, commission, and allowances at least for the first 4 weeks of statutory holiday entitlement.

A clear balance needs to be struck between employers needing employees to be available to work when lock down ends (and not taking holiday) and employees needing a genuine break.

The Government has announced that  workers who have not taken all of their statutory annual leave entitlement due to COVID-19 will now be able to carry it over into the next two leave years. This may not, however, help an employer in the long term as employees will be storing up untaken annual leave which will need to be taken at a later date.

Thursfields has a team of Employment Law Experts with offices in Birmingham, Halesowen, Kidderminster, Sedgley, Solihull and Worcester. Whether you are an employer or employee, it’s important you get the right advice at the outset.

For more information call James Monk on 0121 227 3366 or email jmonk@thursfields.co.uk

DISCLAIMER: The materials in this guidance are provided for general information purposes and do not constitute legal or other professional advice. While the information is considered to be true and correct at the date of publication, changes in circumstances may impact the accuracy and validity of the information. Thursfields Solicitors are not responsible for any errors or omissions, or for any action or decision taken as a result of using the guidance.

James Monk - Colour

James Monk,

Associate Director, Employment & HR Law

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