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Is furlough time for a holiday?

Is furlough time for a holiday?

Adrian Marlowe

Adrian Marlowe

For their annual holidays many people conjure up thoughts of sunny beaches, the odd pina colada or two, trips to exotic or interesting places, sports and leisure activities, in other words a trip of some kind. Others may be content to stay at home and relax.  Individuals will all have their own thoughts around what they view as a holiday. However in the normal sense holiday is a paid for leave of absence from work; it makes no difference to the employer if the holiday is taken at home, the Outer Hebrides or Greece, or indeed if it is taken as time off to look after children (which may involve some stress!). The personal preference of the employee is generally irrelevant and this remains the case subject to COVID lock down rules.

Fast forward to life under furlough. Furlough is a paid for leave of absence from work.  The furloughed individual is not allowed to work, at least for the employer, and can choose to relax as he or she thinks fit, subject to COVID lock down rules. So what is the difference between regular ‘official’ holiday and furlough time off? Why is furlough time not treated as holiday time, and, more challengingly, should it be?

Most employees will probably not elect to treat their furlough time off as official holiday. However  they will be accruing WTR leave all the time, a holiday entitlement that can be taken by the employee during the remainder of the leave year. So where does this leave the employer who may want all hands on deck when work picks up, only to find staff returning from furlough electing to use their accrued time to take official holiday?

There are several factors to be considered. First the law requires the employer to ensure that employees have adequate opportunity to take holiday during the current leave year. Normally untaken leave entitlement cannot be carried over in the absence of agreement. However the government has said that untaken leave can be carried over for the next two years if it is not reasonably practicable for leave to be taken this year. It is not wholly clear how the extension mechanism will work, but most will probably conclude that furlough time off allows adequate opportunity for WTR holiday to be taken this year. Remember that holiday leave is leave from work, and it is not dependent upon being able to fly to Greece or zip up to Scotland to see the in-laws.

As the furlough guidance specifically states that furloughed workers can use the furlough period to take holiday it would seem that the government is encouraging furloughed workers to take their leave now, and by implication is encouraging employers to designate part of the furlough period to be treated as WTR holiday, presumably in anticipation that workers will be ready to get back to work once furloughing is over.

So employers concerned about having a full workforce ready willing and able to pick up the reins where they left off may decide to specify that time on furlough is holiday time.

Three rules to remember. First the employer must give appropriate statutory notice to the worker specifying when and how much time is to be treated as WTR holiday. Second, workers who are sick during a period of designated WTR leave are entitled to treat the sick period as not counting towards their used holiday time, meaning that employers worried about time dodging workers should always make sure that time off sick is reported promptly with supporting evidence. Third, holiday pay for the designated holiday period should be the normal pay rate agreed than the furlough rate. This means full salary rate which is the current rate agreed as salary (this may have been reduced due to COVID-19 circumstances) not the 80% recoverable from the government as furlough grant.

Author – Theresa Mimnagh

 

For more information or legal advice call Lawspeed on 01273 236236 or email [email protected].

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