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Requiring annual leave to be taken during furlough

We would like to require staff to take some holiday during furlough

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Given that furlough is going on longer than first thought, we are considering requiring staff to take some time as holiday during this period.

We will give twice as much notice (ie 2 weeks) for the one week period.

We will top up the pay to 100% (where we are not currently doing so).

Are there any discriminatory issues in requiring furloughed staff to take this time, but not requiring the staff who are still working to take it?

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By paul.benny
11th Jun 2020 11:49

This is essentially an employment law question - for which ACAS is a pretty good resource.

Employers can require employees to utilise part of their holiday entitlement at times of the employer's choosing - commonly Christmas and factory shutdowns.

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By Mr_awol
11th Jun 2020 12:43

I think you need employment law advice as previously stated. However, for what it's worth, my gut feeling is that forcing furlough staff to take holiday now could be risky - if not legally, then at least for future staff morale. Your post indicates you will top up to 100% "where we are not already doing so" and im not sure if that means you aren't currently doing it for anyone or (more likely as I read it) that you are already topping up some but not others. If you have some workers in, others furlough at 100% and others furlough at 80% then you already have quite a breeding ground for discontent as to why:
- Worker A gets to go in and earn money whilst worker B is furloughed at 80%. Worker B is unhappy.
- Worker B is on furlough at 80% but worker C is on furlough at 100%. Worker B is unhappy. Worker A is also unhappy as they are slogging their guts out to keep the business running whilst worker C is earning the same for sunbathing.

We have very few staff furloughed and hope to bring them all back shortly - homeworking if need be. However we have gone with a simple 'everyone must have taken x days by x date' to avoid a huge buildup of holiday entitlement. This applies whether you are working or not.

An alternative, if you pay more than the statutory minimum holiday entitlement, might be to allow ALL staff to 'sell' back some or all of the excess holiday over statutory minimum. For example we pay seven weeks instead of 5.6 and staff can, if they wish, buy back up to 1.4 weeks each although we would never insist on it. This allows our furloughed workers to ditch holiday that they wont get chance to and/or don't want to use this year, whilst still getting a week and a half extra pay for it, and means that we aren't abusing the furlough scheme by writing off our holiday liabilities at an 80% discount. It costs more, but it's the correct way to do it we feel.

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By tom123
11th Jun 2020 14:01

Thanks both.
To clarify, all furlough staff are being paid 80% - there is no variation there.
With regard to the morale - yes, that is a consideration - but over-riding is the need to try and have a continuing business.

There are no winners...

Think it will be a mix of a 'shutdown', maybe buy back, and possibly allowing more carry over than we usually do.

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By Philipbwood
18th Jun 2020 10:01

Hasn't the law been changed to allow staff to carry over for up to two years or am I imagining it?

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Replying to Philipbwood:
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By Mr_awol
18th Jun 2020 11:12

Philipbwood wrote:

Hasn't the law been changed to allow staff to carry over for up to two years or am I imagining it?

Many employers wont want that though.

For example, even though we are busy, we are insisting that staff take some holiday over the summer. This is for two reasons:
1) They are working quite hard, and deserve/need a break
2) Otherwise we could easily get to the end of our holiday year and find that people have taken very little holiday and they all have four or five weeks holiday remaining - which gives us a real problem in 2021 or 2022 when they either wont have time to take it, or will want huge amounts of time off.

It does mean that holiday pay accruals are going to be important for more clients (I know there was a big hoo-ha over FRS102 but that was largely just people getting their knickers in a twist over nothing. There are some employers it was always important for and now there will be more).

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Hallerud at Easter
By DJKL
18th Jun 2020 11:33

This looks worth a read but given it does not carry weight of law I would still take paid legal advice.

https://www.lexology.com/library/detail.aspx?g=319fad8c-87cd-4646-862b-7...

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