Holiday Pay During Furlough

Coronavirus-legal-insights-annual-leave-and-furloughAlmost all workers, including zero-hour contracted workers and those on irregular hours contracts, are legally entitled to 5.6 weeks’ paid holiday per year. The exception is those who are genuinely self-employed.

Furloughed employees continue to accrue leave as per their employment contract.

You can only place employees on furlough if coronavirus (COVID-19) is affecting your operations.

You should not place employees on furlough just because:

  • they are going to be on paid leave
  • you usually do less business over the festive period

The employer and employee can agree to vary holiday entitlement as part of the furlough agreement, however almost all workers are entitled to 5.6 weeks of statutory paid annual leave each year which they cannot go below.

Employees can take holiday whilst on furlough. If they are flexibly furloughed then any hours taken as holiday during the claim period should be counted as furloughed hours rather than working hours.

Working Time Regulations (WTR) require holiday pay to be paid at the employee’s normal rate of pay or, where the rate of pay varies, calculated on the basis of the average pay received by the employee in the last 52 working weeks (twelve weeks in Northern Ireland). Therefore, if a furloughed employee takes holiday, the employer should pay their usual holiday pay in accordance with the Working Time Regulations.

Employers will be obliged to pay employees who are on holiday additional amounts over the grant, though will have the flexibility to restrict when leave can be taken if there is a business need and the correct notice is given. This applies for both the furlough period and the recovery period.

If an employee usually works bank holidays then the employer can agree that this is included in the grant payment. If the employee usually takes the bank holiday as leave then the employer would either have to top up their usual holiday pay, or give the employee a day of holiday in lieu.

More details can be found here

Getting Paid Instead of Holidays

HolidayPaid annual leave is a legal right that an employer must provide. Most workers who work a 5-day week full time must receive at least 28 days’ paid annual leave per year. This is the equivalent of 5.6 weeks of holiday.

Getting paid instead of taking holidays

The only time someone can get paid in place of taking statutory leave (known as ‘payment in lieu’) is when they leave their job. Employers must pay for untaken statutory leave (even if the worker is dismissed for gross misconduct).

If an employer offers more than 5.6 weeks’ annual leave, they can agree separate arrangements for the extra leave.

Taking holiday before leaving a job

During their notice period the worker may be able to take whatever is left of their statutory annual leave.

More details can be found here

Sick Leave and Holidays

Sick leave and holiday

Statutory holiday sicknessentitlement is built up (accrued) while an employee is off work sick (no matter how long they’re off).

Any statutory holiday entitlement that isn’t used because of illness can be carried over into the next leave year. If an employee is ill just before or during their holiday, they can take it as sick leave instead.

An employee can ask to take their paid holiday for the time they’re off work sick. They might do this if they don’t qualify for sick pay, for example. Any rules relating to sick leave will still apply.

Employers can’t force employees to take annual leave when they’re eligible for sick leave.

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When an employee changes their holiday to sick leave they’re paid Statutory Sick Pay which will count towards the amount of holiday pay they’ve received. The exceptions to this rule are:

  • they don’t qualify for Statutory Sick Pay
  • they were off work sick and being paid ‘occupational sick pay’