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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 66847
Experience:  Qualified Employment Solicitor
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I am currently on, I am currently on furlough & also going

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I am currently on
JA: Was this discussed with a manager or HR? Or with a lawyer?
Customer: I am currently on furlough & also going through redundancy consultation which is scheduled to go on till end of June. Our employee have told us that they are forcefully making us take our holiday in the month of July as they can benefit from the Furlough scheme & also not pay accrued holiday. There are about 95 colleagues in this process & I was wondering if there’s any way we can refuse this? We also have the following clause in our contract “ On termination of the Employment, the Employer may either require you to take any unused and accrued holiday entitlement during any notice period by giving you at least one day's notice (but such holiday entitlement will be deemed to be taken during any period of Garden Leave) or make a payment in lieu based on your entitlement under clause 7.1 for the holiday year in which your employment terminates. If the Employer terminates the Employment in accordance with clause 13.2 or if you resign in breach of clause 2.4, your entitlement to payment in lieu will be based on the minimum holiday entitlement under the Working Time Regulations 1998 only. If you have taken more holiday than your accrued entitlement, you will be required to reimburse the Employer in respect of the excess days taken and the Employer is authorised to deduct the appropriate amount from any sums due to you. Any payment in lieu or deduction made shall be calculated on the basis that each day of paid holiday is equivalent to 1/260th of your salary’” please do offer me your feedback...or feel free to call me on*********** My name is*****: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: Employee
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. I may also need to ask some questions to determine the legal position.

How long have you worked there for? Please note it is extremely busy at present due to the ongoing situation so there will likely be a delay in replying, but I will get back to you at some point today. Thanks

Customer: replied 15 days ago.
Hi, it has been under 2 years, since November 2019. I understand they are not obliged to pay severance though I really want to see the stand point of “forcing” us to take holiday in July. They have point blank said that they will not accept any holiday requests in June. My interest has been piqued by the following article: https://www.xperthr.co.uk/faq/can-an-employee-take-annual-leave-while-on-furlough-leave/165128/Many thanks
Customer: replied 15 days ago.
Sorry...am not willing to put £44 for a call if this is the fee. Would rather it be via the interface if that is the case

Many thanks for your patience. Ignore the call offer, it is optional.

Going back to your query, the relevant article you need is actually this one:

https://www.xperthr.co.uk/faq/can-an-employer-require-employees-to-use-their-annual-leave-during-the-coronavirus-outbreak/165040/

As you can see, this is a bit of a grey area, which is not surprising considering this is a situation we have never had before and one which the law had not planned for specifically.

The latest guidance from the Government is covered in that article and 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."

If this is applicable for the time you are required to take your holidays, you can challenge the employer’s decision. However, they can still proceed with it and deduct the days from your total allowance. It is then up to you to make a claim in the Employment Tribunal to recover the payments for these days and that is when we will find out what the tribunals think of this situation as it would be the first time they would have had to consider it.

Does this answer your query?

My response to your query should be visible on this page. Could you please let me know if it has answered your original question or whether you need me to clarify anything else in relation to it? If your query has been answered I would be grateful if you could please take a second to confirm this by replying on here. Thank you

Hello, not sure if you are having trouble seeing my posts? I have not heard back from you since posting my answer and just need to know if your query has been resolved. If you could please post a quick reply to confirm I would be very grateful. Thank you

Customer: replied 14 days ago.
Hi Ben, seems as clear as can be in this tricky situation. Thanks very much

All the best

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