Can employers require employees to take their holiday leave during furlough?
Employers might want to do this for a number of reasons, for example:
to deplete some or all of the employee’s outstanding annual leave
to reduce the amount of leave still to be taken when work resumes
to get the Government to fund 80% of an annual leave payment.
So can they do that? The answer is yes.
The Working Time Regulations 1998 reg 15 makes it clear that an employer can insist on an employee taking annual leave on particular dates, as long as they give twice the number of days’ notice that they want the employee to take as holiday. So, for example, an employer needs to give two weeks’ notice to require their employee to take one week’s annual leave.
(Note that I’m using the word ‘employee’ because while the Working Time Regulations apply to all workers, the CJRS only applies to employees on PAYE as of 28 February 2020.)
In practice this means an employer can furlough the employee for three weeks and tell them at the start that the third week is annual leave. By definition, this then means they’ve given the required two weeks’ notice of the one week’s annual leave.