The Team

Covid-19 - Holidays and rights of employers and employees
28/05/2020
Covid-19 - Holidays and rights of employers and employees

Governments across the UK have enforced lockdown provisions in an effort to prevent the spread of Covi-19. This has resulted in many businesses being forced to close and even those who have been working have placed a large percentage of staff on furlough. As summer approaches, when those very same members of staff would usually take some of their holidays, problems are being stacked up for both employers and employees simply because normal conditions don’t currently apply.

 

Unless the contract of employment alters the legal basis for holidays, The Working Time Regulations 1998 set out the arrangements between the employer and employee.

 

Regulation 15(1) allows the employee to elect which days to take as holidays by giving the employer the required notice – which is twice as long as the holidays sought. So, if an employee was looking to take 5 days’ holiday, the minimum notice period would be 10 days.

 

This right to elect to take holidays is subject to the employer’s right to tell workers when holidays must be taken – and this right supersedes the employee’s right – without there being any requirement of reasonableness or any other control (subject to it not being discriminatory).

 

This means the employer can “force” the employee to take holidays to suit its own needs. Traditionally, in the construction sector, for instance, construction sites close down over the festive holidays – usually for around two weeks. Employers generally require employees to take holidays during the period of closure of the site and there’s nothing the employee can do about that.

 

Employment contracts can clearly alter these arrangements as can collective agreements through Union or Staff Association negotiation.

 

There isn’t a great deal the employee can do about the requirement to take holidays – but they are generally able to “book” holidays well in advance thus preventing the employer from allocating holidays to other dates.

 

The question of holidays is particularly prevalent at the moment as we ease out of lockdown. With holidays to foreign climes nowhere near on the horizon, many employees are looking to defer their holidays until such time as foreign travel becomes freely available. Many holidays have been cancelled because the destinations are closed to British tourists and the airlines aren’t flying to them.

 

What happens if my employer demands that I take holidays whilst I’m on furlough?

Again, unless your contract of employment has changed the basis of your holiday entitlement, the answer is “not very much”! Your employer can insist that you take a holiday even though you’re on furlough provided you receive at least double the amount of notice than the number of days you’re being asked to take. Whilst the UK Government has indicated that it would take a very dim view of employers who do this – effectively, allowing the government to pay for 80% of the employees holiday entitlement whilst the employee is unable to work – there is nothing it can do about it. If an employer decides to adopt that tactic, it’s within the law (provided the employment contract hasn’t altered the situation).

 

Employers will also be aware that under other UK Government regulations introduced in April 2020 to deal with Covid-19 employees are allowed to carry over holidays they are unable to take due to the coronavirus pandemic into the following two annual holiday years. This means when things begin to return to normal, they could refuse holiday requests for this year and instruct employees to use the remainder of this year’s holiday entitlement in 2021 and 2022 holiday year.

 

What an employer needs to be sure of is that any policy in this area is non-discriminatory.

 

If, for instance, an employer insists all female employees take holidays but don’t insist that male employees do the same, it’s likely it’ll be considered discriminatory. Similarly, if an employer insisted employees on furlough take holidays but not those employees who are not on furlough, this is also likely to be considered discriminatory.

 

The remedy for any employee who feels discriminated against is an employment tribunal.

 

As you can see, there are various challenges facing employers and employees and there may not be the “right” balance between the rights of either party.

 

If you have an employment problem which you would like to discuss, please get in touch with us.