Dealing with holiday during a global pandemic

Clearly the holiday season is going to look a little different for 2020, but as the world starts to reopen and we move into the summer period, this will start to become more topical.

Entitlement

Employees and workers do continue to accrue holiday as normal, in accordance with their contract or the law whilst on furlough leave. You are also required to pay this holiday (including bank holidays) at their normal 100% rate, even if they are on furlough leave.

You can still claim back the relevant amount under the furlough scheme, but you will need to top this up. The time taken as holiday would be deducted from their entitlement as usual.

The staff member does not get furlough pay at 80% and holiday pay at 100% in respect of the same days.

Carrying Over Holiday

Employers are now mindful that some individuals could be on furlough leave until the end of October and have a lot of holiday they need to use up.

Fortunately, the Government passed emergency legislation to amend the Working Time Regulations which allows employees to carry over four out of 5.6 weeks into the next two leave years in order to deal with the outcome of the coronavirus pandemic when it is not possible for employees to take their holiday and to prevent this from being lost as it may have been in normal circumstances. This constitutes the “Working Time Directive” element of holiday (or “Euro-leave” as it is sometimes called). The balance of time available to workers due to the more generous Working Time Regulations can already be carried over by agreement, or, as this is often used to cover the bank holidays, it may be that you are paying bank holidays in the ordinary way.

This legislation is available to all employees and workers (not limited to “key workers”) and will be pro-rata for part-time employees. If you do allow any carryover of holidays, ensure this is well documented and communicated with your staff. Effectively next year, they will have two entitlements and any carryover will not affect their entitlement for next year. You will need to remember this if you are calculating holiday for any leavers.

You cannot pay staff in lieu of their statutory holiday of 5.6 weeks’ in each leave year; they must be allowed to take it under the Working Time Regulations. You could look to pay staff in lieu of any holiday entitlement above the statutory minimum if they are in agreement, or if this is your usual practice.

Requesting Employees to Use Holiday

You are able to request your employees or workers use up some of their holiday if you provide the correct notice to them. This is always twice the length of the requested holiday i.e. if you want your staff to take one week’s holiday, you must give them two weeks’ notice. This may be useful to ensure that holiday does not get out of hand whilst staff are on furlough, or to deal with any shutdown periods that the business feels it will have to have.

It is beneficial to explain to your staff why you want them to take holiday to keep them informed and engaged. They may be disappointed if they were planning to use this later in the year for a special occasion or pre-booked trip.

Some individuals may wish to cancel their holiday they had previously booked. It is your decision as to whether you want to accept this request to cancel or ask them to keep that booking in place. By allowing no holiday to happen this year, you could be moving the problem to a later date.

The Government guidance on insisting that staff take holidays at the present time is as follows: “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 holiday.”

Holiday under the Working Time Regulations does not feature being able to go away or leave the country, but if homeschooling or shielding might prevent the individual from enjoying a rest period, holiday may not be effective.

Self-Isolating after Travel Abroad

One area that is not accounted for in most contracts of employment or engagement, is self-isolation after travelling abroad when an individual has been on holiday. Current proposals are that with effect from 8 June, individuals will be required to self-isolate for 14 days when they come back from travelling abroad, other than from specific destinations, and that it will be a criminal offence not to do so. You can read more about the requirements to self-isolate on returning from abroad here.

At present, there is no entitlement to statutory sick pay for staff in this situation. Contractual sick pay generally is only payable when the individual is actually unwell. As things stand, therefore, this time will need to be taken as unpaid leave or further holiday, unless they are able to work from home.

If they develop symptoms of COVID-19 then this will of course default to being sick and any sick pay can be paid in accordance with their contract.

However, if simply isolating and the individual cannot work from home, they would have to take more holiday or unpaid leave.

We are aware that this could be disruptive to businesses if individuals are taking their holiday abroad and then potentially need to take an additional 14 days out of the business. You could ask the staff to cancel their pre-booked holiday, but you may wish to discuss this with them first and act as reasonably as you are able to.

If the individual chooses not to go on holiday their insurance is unlikely to cover it, so it really is a difficult situation all around. If the individual has not booked a holiday yet but is hoping to, it is worth having policies in place for what you will ask them to do to cover the 14 days upon their return in advance of them booking the leave.

There are also a number of exemptions to the requirement to isolate for 14 days if you are travelling for certain types of work or fall into certain categories – companies should look carefully at the guidance as it may apply to them.

Further advice

If you would like to discuss any aspect of this article further, please do get in touch and we will be happy to help.

For specific advice for your business, please get in touch with our specialist Employment Law team through this website or by calling 0330 404 0778.

Our partners at Ashtons HR Consulting are also on hand to assist you.

This information is correct at 4pm on 9 June 2020.