Can you be forced to take holidays whilst on furlough?

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With costs coming into sharp focus and a pent-up eagerness to get back to work, employers are beginning to eye up how they can get out of the blocks fast and start to make money. One of the key elements of this is to have a workforce available to carry out their daily tasks and if employees decide to take holidays, that’s likely to impact on the productivity of the business.

To prevent this happening, employers have been looking at having employees take holidays whilst on furlough. This means that when the lockdown is fully eased up and workplaces return to something like normality, employees holiday entitlement will have been partially satisfied.

The legal basis for this is found in The Working Time Regulations 1998 which set out the arrangements between employers and employees in relation to holidays (and many other things besides). Unless the contract of employment specifically changes the arrangements found in this Regulation, its terms are applied to the employment situation.

What that means for employees is that an employer can require them to take holidays whenever they like provided they give double the number of days’ notice. So, if an employer decided to have employees on furlough take 3 days holiday, the employer must give the employees 6 days’ notice.

This actually isn’t unusual and this is used across many different industry and business sectors. In the construction industry, construction sites usually close down over the festive period. That means employees cannot work during that period and if their employer either builds this into their contract of employment or gives them sufficient notice, then employees must take the requisite number of days holiday over the period of closure.

Of course, Regulation 15(1) allows the employee to elect which days to take as holidays by giving the employer the required notice – which is twice as long as the holidays sought. So, if an employee was looking to take 5 days’ holiday, the minimum notice period would be 10 days. Employees frequently put in holiday requests well in advance for their “summer” holidays as well as requests for the occasional day or says off. If the employee makes such a request and it’s accepted (and there’s generally no reason it shouldn’t be) then the employer can’t then change that. However, if the employee has holidays available and the employer decides, for whatever reason, that it wants the employee to take holidays, then, again, provided it gives the requisite notice, it can force the employee to take holidays on dates it determines.

So, if your employer decides that you’re to have holidays during your time on furlough, there’s not really very much you can do about that.

However, an employer must bear in mind that the requirement cannot be discriminatory.

For instance, if an employer decided to order all employees on furlough to take a holiday but doesn’t ask those who are working to take a holiday, that might be considered discriminatory. Similarly, if the employer asked only female employees to take a holiday but not male employees, again, that might be considered discriminatory.

Should an employee be subject to such discrimination, they can take their grievance to an employment tribunal to rule on the matter.

Finally, if you are forced into taking a holiday whilst on furlough,  your employer must pay you your full  wage for the days you spend on holiday and not  the 80% of  pay that’s mostly being paid for employees who currently find themselves on  furlough.

If you have a question about holiday entitlement – whether on furlough or not – or with to discuss an employment issue, please get in touch with us.

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