What annual leave do I have to give an employee during the pandemic?
Since the introduction of the furlough scheme, its crossover with employees’ rights to annual leave has been a sticking point issue that has raised lots of questions for businesses. There’s a sense that furloughed staff retaining their rights to paid holiday lacks reason and fairness, and both employers and employees have voiced frustration with the law on this issue.
The government recently declared that its roadmap for exiting current restrictions is on track, but where do you stand when it comes to dealing with your employees’ annual leave entitlements in relation to furlough and the pandemic?
We’ve answered some of the most common questions below.
Can my staff carry forward annual leave if they can’t take it because of the pandemic?
The short answer is yes. The government passed emergency legislation in March 2020 to allow employees to carry-over any untaken annual leave where that leave is required pursuant to the Working Time Directive and where it was not reasonably practicable to take it in the leave year ‘as a result of the effects of the coronavirus.
Covid-19 holiday guidance from the government suggests businesses should think about the following when deciding whether it is ‘reasonably practicable’ to take the leave in the relevant leave year:
- Whether the business has faced a significant increase in demand due to Covid-19 that would reasonably require the worker to continue to be at work and cannot be met through alternative practical measures
- The extent to which the business’ workforce is disrupted by Covid-19 and the practical options available to the business to provide temporary cover of essential activities
- The health of the worker and how soon they need to take a period of rest and relaxation
- The length of time remaining in the worker’s leave year
- The extent to which the worker taking leave would impact on wider society’s response to, and recovery from, the effects of Covid-19.
- The ability of the remainder of the available workforce to provide cover for the worker going on leave.
The guidance also states that employers should do everything reasonably practicable to ensure that the staff member is able to take as much of their leave as possible in the year to which it relates. If leave is carried forward, it is best practice to give staff the opportunity to take holiday at the earliest practicable opportunity.
Is a worker who is in self-isolation entitled to reschedule their holiday?
Based on the case law on statutory annual leave and sickness absence, it is arguable that a worker who has to self-isolate but does not have symptoms of Covid-19 should be entitled to reschedule their annual leave, if they wish to do so.
Where a person has to self-isolate because they have Covid-19 or symptoms of it, then they would be treated in the same way as any other worker who is absent due to ill health.
However, if a worker has to self-isolate because government guidance recommends that they do so (for example, if they live with someone with symptoms) but they are not incapable of working due to their own ill health, then the position is less clear. These individuals would be entitled to statutory sick pay (SSP), but their entitlement to SSP is not necessarily enough to bring them within the case law on the rescheduling of annual leave for employees who are incapable of work due to ill health.
Can I make a staff member take holiday during lockdown or furlough?
You can do this, however, the current government guidance states that if you require workers to take holiday during furlough, you must also consider any restrictions that the employee is under, including the need to self-isolate or socially distance. You must view these considerations alongside the fundamental purpose of the employee’s holiday, which is to rest, relax and enjoy their leave.
These considerations would also apply if you require an employee to take holiday during a period of lockdown, but it can be difficult for you to assess what would or would not amount to preventing your employee from relaxing and enjoying their annual leave.
In this case, you could argue that a restrictive form of lockdown (underpinned by the criminal law) that puts employees in effectively the same position as people who are subject to self-isolation, may be a period during which it is not possible to enjoy rest and relaxation and that you should allow employees to reschedule holiday during this period.
Author: Charlotte Geesin, Head of Employment Law & Business Immigration