After a lot of uncertainty, the latest guidance confirms that employees can request to take holiday whilst on furlough.

So unless there is further guidance it still isn’t clear whether employers can ask employees to take accrued annual leave.

In support of the proposition that employees can’t be required to take annual leave, some leading employment practitioners argue that being on furlough is the equivalent of being off sick – in those circumstances employers cannot force employees to take holiday (holiday is for resting - therefore an employee can’t really take a proper day’s holiday).

Despite the above, and the inevitable risk to employers of tribunal claims, there are employers who are requesting that furloughed employees take some days as annual leave, so as to avoid the build-up of accrued annual leave if and when things return to normal.

Even so, if employers are going to designate some days off as annual leave, the view is that any request must be proportionate – clearly it would be unfair to make an employee take 2 weeks off when they are "locked-down". For employees entitled to 28 days holiday the monthly accrual is 2.33 days. Arguably, therefore, it is likely to be more reasonable to request employees take no more than two days off per month whilst furloughed.

Even if employees are taking some annual leave (noting the two bank holidays in both April and May) then assuming lockdown provisions start to ease sometime this month most employees are unlikely to book any meaningful period of leave (say 2 weeks) if travel restrictions are still in place throughout the UK and, more importantly, for package holiday purposes, both in Europe and further afield. Interestingly, a lot of international airlines are beginning to offer extremely attractive discounted flights for the period November through to March 2021 with the right to change flights without penalty during this period.

Carry Over Annual Leave

One of the government’s earliest pronouncements was allow workers to carry over up to 4 weeks (not 5.6 weeks) annual leave into an employer’s following 2 leave years.

The forthcoming The Working Time (Coronavirus) (Amendment) Regulations 2020 will amend regulation 13 of the Working Time Regulations to allow workers to carry over EU holiday (i.e. the 4 weeks) into an employer's next two leave years, where it is not reasonably practicable for them to take all their holiday entitlement due to COVID-19.  The balance of 1.6 weeks' statutory leave will not be affected subject to any existing rights to carry over this leave.

Under EU law employees are entitled to a minimum of 4 weeks (20 days) paid holiday. This period is supplemented under r13 (A) Working Time Regulations 1998 (“r13 (A) leave”) by a further 1.6 weeks (8 days), making a total of 5.6 weeks. This equates to 28 days for a full-time employee.

The r13 (A) leave represents the same number of public holidays (8) in the UK, however there is no requirement to designate these public holidays as part of an annual leave entitlement – that said most employers do.

Potential Practical Difficulties Ahead

Assuming at some point towards the end of the year travel restrictions are relaxed, it is not difficult to envisage employers being inundated with 1 or 2 week annual leave requests by employees understandably wanting to take package holidays which they were unable to take during the course of this year.

It is likely, therefore, that in order to maintain some level of operational effectiveness employers will have to decline a large number of annual leave requests. However, the ability to carry over annual leave will hopefully help mitigate any disappointed employees.

Employers will need to carefully decide how they intend to implement this new right to carry over annual leave. For example, will they attempt to just limit the carry over to 4 weeks which the regulations provide for, or will they allow all untaken annual leave to be carried over. Trying to limit any carry over to just 4 weeks can itself create problems when it comes to identifying which leave (i.e. EU law leave or r13(A) leave) is taken first.

If travel restrictions remain in force for several months then making employees take longer periods of annual leave in circumstances where they can’t practicably take a proper holiday is likely to be unpopular. It is also brings into question whether, with travel restrictions still in place, employees can argue it wasn’t “reasonably practicable” (by reference to the new regs) for them to take a holiday.

Employers will need to have more proactive discussions with employees about taking longer periods of leave so that time-off can be carefully managed in accordance with operational requirements. In particular, employers will need to be mindful of some employees hedging their bets by block-booking leave with an expectation they can simply cancel their leave if at the time it doesn’t suit. Clear guidance will need to be given about whether employers will entertain cancelling leave and, if so, in what circumstances.