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New guidance: Government guidance leaves uncertainty over when furloughed employees can be forced to take annual leave while off work

There is still uncertainty when an employer can require a furloughed employee to take annual leave, despite the recent government guidance ‘Holiday entitlement and pay during Coronavirus (COVID-19)’.

June 2020

This update was published in Legal Alert - June 2020

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

The intention behind the guidance was to make it clear that employers could require employees to take annual leave during furlough in order to prevent holiday entitlement building up to such an extent that, when those employees went back to work, they were all entitled to significant accrued holiday, leaving employers short-handed.

However, what the guidance actually says is ‘If an employer requires a worker to take holiday whilst 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’.

The opening words imply a worker can be forced to take holiday while on furlough, but the words ‘the employer should consider whether any restrictions…would prevent the worker from…enjoying…the fundamental purpose of holiday’ operate to qualify the opening words.

The issue for employers is how they should interpret those qualifying words. Some argue that everyone has to observe some sort of social distancing, including furloughed employees, so any and every employee could possibly argue that they cannot be forced to take annual leave while furloughed.

Employers may wish to take specialist advice on their particular circumstances.

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