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Acas guidance: Coronavirus (COVID-19): Using holiday: comparison between 6 and 7 April versions
Acas published wide-ranging guidance for employers and employees regarding the coronavirus (COVID-19) pandemic, relating to various topics including staying at home, social distancing, self-isolation, sick pay, closure of workplaces, time off for carers and others.
Part of that advice relates to Using holiday, which considers:
carrying over holiday
the relationship between holiday (annual leave) rights and furlough under the Coronavirus Job Retention Scheme (see Practice Note: Coronavirus job retention scheme)
the extent to which employers may require employees and workers to take holiday on specific dates, or to cancel holiday
The guidance on Using holiday was first added on 31 March 2020.
Since that time, the wording of that part of the guidance has been revised on 2 April and then again on 7 April 2020.
David Reade QC and Daniel Northall of Littleton Chambers have (so far) written two articles considering, in particular, the relationship between furlough and annual leave, both of which are available here. They look among other things at that Acas guidance on Using holiday. Their second article considers the changes made on 2 April to that Using holiday advice:
The Coronavirus Job Retention Scheme: more holiday cancellations? (published by us on 2 April 2020)
The Coronavirus Job Retention Scheme: an addendum on annual leave (published by us on 6 April 2020)
We now consider, below, the further revisions made on 7 April to the Acas Using holiday guidance.
A track-changes version of the Acas guidance on ‘Using holiday’, showing what alterations (additions and deletions) have been made when comparing the ‘old’ 6 April version to the ‘new’ 7 April version, can be accessed here:
A lot of the change made are superficial and of no real consequence. We pick out those changes of significance below.
The single most important change is the inclusion of this sentence:
‘Employees and workers must get their usual pay in full, for any holidays they take.’
The sentence relates to the position where a worker on furlough under the Coronavirus job retention scheme takes annual leave during a period of furlough. Currently, HMRC’s guidance document for employers on the Coronavirus Job Retention Scheme is silent on the issue of what a worker must be paid in these circumstances, so this change to the corresponding (but non-statutory, non-binding) Acas guidance provides the only clear statement to date on the issue of whether a furloughed worker must be paid normal (100%) wages by the employer during a period of annual leave which is taken while a worker is on furlough.
There is also a later amendment that clarifies that holiday taken on a Bank Holiday must also be paid ‘in full’, including when the worker in question is furloughed.
With effect from 9pm on 26 March 2020, special temporary legislation amended regulation 13(9) of the WTR 1998 was amended to allow any or all of the basic entitlement of four weeks’ annual leave to be carried forward up to two leave years if it was not reasonably practicable for a worker to take any or all of that leave because of the effects of the coronavirus (COVID-19) pandemic. See Practice Note: Holiday — Carry forward of leave: coronavirus (COVID-19) changes.
The Acas guidance on ‘Using holiday’ alludes to this alteration to the WTR 1998. Key to whether holiday may be carried over under this special provision is whether it can be said that it was:
‘not reasonably practicable for a worker to take some or all of the leave to which the worker was entitled under this regulation as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society)’
The change to the Acas guidance perhaps place a slightly different emphasis on whether or not, and in what circumstances, it may be said that it was ‘not reasonably practicable’ to take annual leave during a period in which a worker is on furlough, saying simply:
‘The employee may also need to carry over holiday if they’ve been 'furloughed' and they cannot take paid holiday because of coronavirus.’
That new version admits of the possibility that being on furlough may be grounds for carrying over holiday, but arguably it makes that more of a possibility than a certainty than the previous wording tended to suggest.
This section discusses the position where a worker seeks to cancel annual leave that they have already arranged with their employer to take The changes here the guidance are more in tone than substance:
the example given of why a worker might want to do this is ‘because their hotel cancelled their booking’ (the old version said ‘because their holiday’s been cancelled’). The new version is looking at a situation created by something outside of the worker’s control, whereas the old version was perhaps more ambiguous and might have included circumstances where the worker had cancelled the holiday on their own initiative and in the absence of an event outside their control occurring
both versions acknowledge that the WTR 1998 allow the employer to insist that the worker takes the annual leave previously booked anyway, even if it is during a period of furlough (see Practice Note: Holiday — When statutory holiday may be taken and the notice requirements), but the new version:
clarifies this point, and
adds that, despite the employer’s right to insist, ‘it’s best practice to get agreement from the employee’
A passage has been added in the 7 April version of the Using holiday which aims simply at encouraging both employers and workers to ‘be as flexible as they can about holiday during the coronavirus pandemic’. Its contents are self-explanatory:
‘Being flexible about holiday during coronavirusEmployers and employees should be as flexible as they can about holiday during the coronavirus pandemic.It’s a good idea to:talk about any plans to use or cancel holiday during coronavirus as soon as possiblediscuss why holiday might need to be taken or cancelledlisten to any concerns, either from staff or the employerinvite and suggest ideas for alternativesconsider everyone’s physical and mental wellbeingbe aware that it’s a difficult time for both employers and staff’
‘Being flexible about holiday during coronavirus
Employers and employees should be as flexible as they can about holiday during the coronavirus pandemic.
It’s a good idea to:
talk about any plans to use or cancel holiday during coronavirus as soon as possible
discuss why holiday might need to be taken or cancelled
listen to any concerns, either from staff or the employer
invite and suggest ideas for alternatives
consider everyone’s physical and mental wellbeing
be aware that it’s a difficult time for both employers and staff’
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