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Furlough - Forced Annual Leave

We have been receiving many queries regarding how annual leave works during periods of furlough. With the recent news that the Job Retention Scheme has been extended to 31 October 2020, this means that employees could accrue significant amounts of annual leave if they remain on furlough for an extended period of time. Previously we have seen the emergency legislation that was passed in March 2020 enabling workers to carry forward holiday into the next two leave years but nothing specifically whether annual leave disrupts a period of furlough. With this in mind, further guidance has been published by the government which goes someway to clarifying the position. This can be found HERE.

In summary, the guidance has clarified that employees on furlough can take holiday without disrupting their furlough. This is good news for employers that were worried that annual leave could interrupt the furlough period and invalidate reimbursement under the Job Retention Scheme.

Where employers are looking to enforce annual leave on employees during the furlough period, they should ensure that the normal statutory notice requirements are adhered to and that any such notice of leave is put in writing to the employee. The statutory notice period is covered in the link above for reference.

As with any changes, it is advisable for employers to engage with their workforce and explain the rationale for this decision and evidence any costing if applicable. As per the guidance, if an employer requires a worker to take holiday while on furlough, the employer should consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of the Working Time Directive.

This is a difficult area to navigate and will no doubt lead to some litigation, so please let me or the team know if we can assist further in order to protect your business.



These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.

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