Elliot Hawker

May 4, 20203 min

Further Clarity of Furlough Leave

Last week, the
 
government provided much wanted clarity with regards to annual leave and
 
redundancies with furloughed employees. But why is this update more important
 
than all other times that clarity has been provided by the government? Why should this grab your attention?

Well, this time,
 
commercially sensitive employers, those with cash flow issues, those that might
 
be facing workforce planning issues when they return post lockdown have a real
 
opportunity to head off some prominent issues, whilst subsidised by the
 
government scheme – but you will have to act fast to make this work for your
 
business, given that the scheme is due to expire on 30th June 2020.

Firstly, we are
 
going to walk you through the basics, before guiding you through what to do
 
next.

Do holidays accrue
 
throughout a furlough period?

It is clear that
 
employees continue to accrue annual leave throughout a period furlough.
 
Currently, there is no relaxation of the Working Time Regulations that prevents
 
the accrual of annual leave throughout furlough.

Can employees book
 
and take holidays throughout a furlough period?

Originally, this
 
was a point of confusion as to whether if annual leave would be seen as an
 
interruption to the minimum 3 week period of furlough.

It has recently
 
been clarified that annual leave can be taken throughout the furlough period
 
and will not effect the furlough period.

Any annual leave
 
periods will need to be paid at the employees normal rate of pay although, the
 
government have confirmed that you can use the furlough grant and top up to the
 
employees normal rate of pay.

Can we enforce
 
annual leave throughout a furlough period, or once the furlough has finished?
 

 

 
The default position under the Working Time Directive is that you need to issue
 
notice which is twice the amount of time that you would like the employee to
 
take. Therefore, if you are requiring the employee to take 5 days leave,
 
you will be required to give 10 days notice. Unless the Contract of
 
Employment or Employee Handbook provides differing notice provisions.

Therefore, any
 
employer that thinks that they may have labour planning issues in relation to
 
employees booking annual leave throughout the second half of the year should be
 
acting now to issue notice of enforced annual leave. Thereby subsidising your annual leave payment
 
with the government furlough scheme.

Can annual leave be
 
carried over to future annual leave years?
 

 

 
Once the furlough ends, employers may find themselves potentially with a
 
workforce that hasn’t taken much of their annual leave which could leave them
 
with a staffing challenge for the remainder of the year. So, what
 
provisions have been made here to assist employers?
 

 

 
For those that are workers in key industries, the Government have allowed for 4
 
weeks to be carried over the following 2 annual leave years.

There has been no
 
actual provision to allow carry over for other employees outside of those
 
categories at this point, although it is expected. Therefore, currently
 
we should be working to ensure that all employees take their minimum allowance
 
(currently 5.6 weeks inclusive of bank holidays) within the leave year.

If I need to make
 
more permanent staffing cuts, can I look at redundancies?
 

 

 
This was a point of much confusion until last week, how do you consult with
 
someone who is furloughed, under a scheme that is designed to protect employee
 
jobs?

The official
 
position of the government is, yes, an employer can still make an employee
 
redundant whilst they are furloughed or afterwards, subject to existing
 
redundancy legislation.

The government have
 
also clarified that whilst furloughed employees may still undertake union or
 
non-union duties and activities, such as representation of employees or other
 
workers. (Although in doing this they must not provide services to or
 
generate revenue for or on behalf the organisation).

If you are thinking
 
that you will need to make permanent staffing cuts in order to safeguard your
 
business longer term, you can indeed start consultation and issue notice
 
throughout the furlough period, therefore, we encourage you to start now.

As an employers, I
 
am confused as to what I should be doing next so I do not end up with problems
 
post lockdown?

Understandably,
 
your staffing model may need to change throughout the lifting of restrictions
 
as we move into the recovery phase. If you wish to understand how best to
 
approach your revised vision, please do call us at NucleusHR on 07960 418494.

Again, if you are not looking at making staffing changes, but you do not want to get caught with employees wishing to take their entire entitlement to annual leave in perhaps only half the normal leave year, please do contact NucleusHR by emailing toni@nucleushr.com.

#furlough #HRSupport #redundancy