New guidance by specialist lawyers outline that forced lockdown ‘holiday leave’ could be against the law.
In the wake of new lockdown restrictions and the Government’s announcement to extend the furlough scheme, an employment lawyer has stated that making employees take holiday leave during lockdown could be unlawful.
The current COVID-19 guidance on holiday entitlement, published in May, states that workers that are employed within key industries are allowed to carry forward unused statutory holiday over the next two years. However, employers have been told to advise employees to take off time within the same year where possible and, where this is not possible, at the next earliest convenience within the following year.
However, a key requirement within this is that employers who do require workers to take a holiday during furlough must consider any restrictions that the employee is under, including the need to self-isolate or socially distance. These considerations must be reviewed alongside the purpose of a holiday which is to rest, relax and/or enjoy leisure time.
Sarah Bowen, a barrister at 3 Paper Buildings, a barristers Chambers, stated that this could be a difficult assessment for employers to make. She said:
The second lockdown will be enforced by criminal law and it may be impossible for the employee to relax and enjoy leisure time, which would mean that the purpose of the holiday cannot be met.
This may therefore mean that employers forcing staff to take annual leave might be found to be acting unlawfully. What’s more, under the Working Time Regulations 1998, workers may have the right to reject an instruction to take annual leave on the basis that it is not reasonably practicable as a result of the effects of the coronavirus.
The problem for employers is that this issue has not been settled and it will be a matter for the Employment Tribunal and Courts to determine in due course, once claims make their way through the justice system.
Additionally, Ms. Bowen also flagged the Government’s guidelines on this matter as ambiguous. She finds that, although the Government has stated that those on furlough are unlikely to need to carry over their holiday as they will be able to take it whilst on furlough, this does not “address the issue of the purpose of leave and whether it will be possible to meet that purpose during periods of lockdown”.
Another key consideration for employers would be the employee contract. Prior to giving notice to a worker to take annual leave, the employer would have to check against the contract of the employer to ensure that this is lawful. Ms. Bowen further explains:
The employee’s contract is another area of ambiguity. If the contract does not give this right then the employer could rely on the notice provisions in the Working Time Regulations 1998, but the legal position remains uncertain.
What’s more, employers must give notice at least twice the length of the period of leave that the worker is ordered to take.
Ultimately, Ms. Bowen suggests for employers to seek advice if they are unsure. Citing many ambiguities surrounding lockdown holiday and the Government guidelines, employers must make sure that what they are asking their employees to do is lawful under the terms of their contract and legal obligations as an employer.
Monica Sharma is an English Literature graduate from the University of Warwick. As Editor for HRreview, her particular interests in HR include issues concerning diversity, employment law and wellbeing in the workplace. Alongside this, she has written for student publications in both England and Canada. Monica has also presented her academic work concerning the relationship between legal systems, sexual harassment and racism at a university conference at the University of Western Ontario, Canada.
