Can an employer force holıday during furlough?
A question I have been being asked a lot lately is:
“Can my employer force me to take annual leave during a furlough?”
Whilst is may seem complex, this is actually a relatively straightforward answer.
Yes. An employer is generally able to insist that annual leave be taken at certain times. This is not any different due to a furlough as the employee continues to be employed. However, there are certain formalities that the employer must follow in order to validly compel holiday.
Regulation 15 of the Working Time Regulations 1998 sets out the following:
“(2) A worker’s employer may require the worker—
(a) to take leave to which the worker is entitled under regulation 13(1); or
(b) not to take such leave,on particular days, by giving notice to the worker in accordance with paragraph (3).
(3) A notice under paragraph (1) or (2)—
(a) may relate to all or part of the leave to which a worker is entitled in a leave year;
(b) shall specify the days on which leave is or (as the case may be) is not to be taken and, where the leave on a particular day is to be in respect of only part of the day, its duration; and(c) shall be given to the employer or, as the case may be, the worker before the relevant date. that an employer may insist that leave is taken, or cancel leave, on particular days.”
This means that an employer can insist that holiday is used on certain days but must receive adequate notice of this. There is no prescribed form for this notice and it seems that it does not have to be in writing. A simple phone call to the employee will suffice.
The length of such notice is, quite simply, twice the period of leave that is taken. i.e. two days’ notice must be given to insist on taking one day’s leave.
During these uncertain times with coronavirus, it seems likely that employers will defer their staff taking annual leave for the simple reason that if holiday is taken whilst furloughed, the employee must be paid their full pay by virtue of statutory law. This meanst that employers will be obliged to pay the additional amounts due to the employee over the 80%/£2,500 cap from the Coronavirus Job Retention Scheme.