Annual Leave Update

This update from Jones Cassidy Brett Solicitors provides a summary of the current position on annual leave during the pandemic.

Things have moved on significantly since we did our last briefing on annual leave on 3 April. So we thought it would be useful to issue a summary of the current position on annual leave during the pandemic. The most common question now being ‘how do we manage the 14-day quarantine period required following an employee’s holiday’?

1. Employees continue to accrue annual leave during furlough.
   
   
2. Employees can take annual leave without bringing the period of furlough to an end.
   
   
3. Employers can require employees on furlough (or those working) to take annual leave at any time (subject to either the right to do so in the employment contract or the right under the Working Time Regulations (NI) 2016 which requires the employer to give notice that is at least double the amount of leave they want the employee to take). However, in exercising this right employers should give some consideration to individual circumstances. So, for example, if an employee has already been given permission to take 5 weeks’ holiday to visit relatives abroad in December and has booked flights etc. it may be unreasonable to insist that they take some of that leave now. The relevant part of the updated Government Guidance states “If an employer requires a worker to take holiday while on furlough, the employer should consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday.” 
   
   
4. With regard to holiday pay, the Government Guidance states that holiday pay during furlough must be “the correct holiday pay in accordance with current legislation”, which is based on normal remuneration. It notes that, where this calculated rate is above the furlough rate of pay, the employer will have to pay the difference (i.e. top up to 100% of pay) but will still be able to claim up to 80% of wages under the Coronavirus Job Retention Scheme until the end of July when the Scheme changes (see our briefing note of 1 June 2020 for the key changes). 
   
   
5. The NI Executive passed emergency legislation in April under the (The Working Time (Coronavirus) (Amendment) Regulations (Northern Ireland) 2020) to ensure businesses have the flexibility they need to respond to the coronavirus pandemic and to protect workers from losing their statutory holiday entitlement. These regulations enable workers to carry holiday forward 4 weeks of statutory leave where the impact of coronavirus means that it has not been reasonably practicable to take it in the leave year to which it relates. Where it has not been reasonably practicable for the worker to take some or all of the 4 weeks’ holiday due to the effects of coronavirus, the untaken amount may be carried forward into the following 2 leave years. When calculating how much holiday a worker can carry forwards, employers must give workers the opportunity to take any leave that they cannot carry forward before the end of the leave year.
   
   
6. The Health Protection (Coronavirus, International Travel) (Northern Ireland) Regulations 2020, which came into force yesterday, 8 June, require anyone who travels in to NI to quarantine / self-isolate for 14 days. It is an absolute requirement not to leave your home during this period (unless in very limited exceptional circumstances e.g. to seek medical attention). Also, if you don’t follow the rules, you could be fined £1,000. So how should employers treat an employee who has taken 2 weeks’ annual leave for his/her summer holidays abroad and is then self-isolating at home for a further 14 days? You should not allow an employee to attend the workplace during the 14-day quarantine period.
   
   The employee may use additional annual leave to cover the period of quarantine, if they cannot work from home. However, what happens if the employee doesn’t have enough annual leave entitlement left to do this? You could ask the employee to take unpaid leave. The Government and the NI Executive have yet to amend the Coronavirus SSP regulations to include the 14-day return from travel quarantine. So, the position remains unclear as to whether a non-symptomatic employee returning from abroad would be entitled to SSP for this period. The SSP Regulations may well be amended in the future so the position may be clarified either way.
   
   We would advise against bringing forward holiday from the next leave year as this would potentially breach the Working Time Regulations (NI) 2016 by reducing the employees’ holiday entitlement below the statutory minimum 28 days’ leave.

The Government is due to update its Guidance on Flexible Furlough on 12 June so there may be further guidance on annual leave then. We will issue a further briefing note following the Government’s update on Friday.

This article does not constitute legal advice and specific advice should be sought in respect of particular cases.