|
Re : Government Guidance: Holiday during the Coronavirus Pandemic
Many weeks after it was needed, the Government has finally published guidance on how statutory rights to holiday and holiday pay under the Working Time Regulations 1998 dovetail with furlough and other aspects of the Coronavirus crisis. This has, understandably, been a headache for many MILS members. See now the guidance here.
The guidance isn't very long and is worth a full read but in summary confirms, amongst other matters, the following :-
- Furloughed workers continue to accrue annual leave.
- Furloughed workers can take holiday without bringing furlough to an end.
- Holiday pay should be "the correct holiday pay in accordance with the current legislation" (i.e. normal remuneration, not 80% or basic).
- It goes on to consider and give examples of when it will be "not reasonably practicable" for a worker to take some or all of their annual leave due to the Coronavirus, thereby enabling them to carry over leave into the following 2 years.
As we say, there are other matters covered, so it's definitely worth a read. Our further comments would be as follows :-
- The guidance is confirmation of the advice that we at MILS have been giving over the last few weeks.
- Although this will obviously be persuasive, note that this is still "guidance" and has no legal authority. Employment Tribunals would not be bound to take account of it (in the same way as, for example, they would with ACAS Codes of Practice).
- The guidance does suggest that an employer can give notice under Regulation 15 of the Working Time Regulations 1998 requiring employees to take holiday whilst on furlough.
There is however a further question mark (and accordingly still a future legal debate over this - and indeed whether or not holiday taken during furlough meets the definition of annual leave set down in ECJ case law) where the guidance comments that : "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".
Whilst many employers are indeed utilising Regulation 15, in order to manage future holiday, we can expect some future litigation and case law in this area.
MILS Legal Ltd.
T/A Motor Industry Legal Services
27b The Mansions
252 Old Brompton Road
London SW5 9HW
Tel: 020 7244 6790
Fax: 020 7244 6791
Email: legaldept@mils.co.uk
|
|
