Sarah Bowen interviewed by Central TV about legal issues and the furlough scheme
11th November 2020
3PB employment barrister Sarah Bowen was interviewed by Bob Warman of Central TV News yesterday about holiday leave during furlough, a scheme that is likely to last until the Spring of 2020.
Speaking as a member of the Birmingham Law Society, Sarah has advised that employers should not assume that forced holiday leave is the answer. Specifically, the COVID guidance on holiday entitlement states that it is necessary for an employer requiring an employee to take holiday during furlough that they consider any restrictions the worker is under, such as the need to socially distance or self-isolate, and if they could prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of a holiday.
Sarah says this is a very difficult assessment for an employer to make. “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.”
Sarah concludes: “My recommendation is to take advice. The issues of lockdown holiday, the guidance being offered and what can and can’t be forced on an employee is ambiguous at best. Employers should ensure that what they are asking their employees to do is in line with their legal obligations and the employee’s contract.”
To read in full the statement from the Birmingham Law Society, please click here.
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