Finally, after weeks of debate amongst employment law practitioners and silence on the part of the Government, the question of whether employees can take annual leave whilst furloughed has been answered with a resounding “yes”.

The latest version of the Government’s guidance for employees confirms that employees can take holiday whilst on furlough and must be paid their usual holiday pay in accordance with the Working Time Regulations. That means employers will have to make an additional payment to top up wages to full pay for furloughed employees who take holiday during furlough leave.

Where employees wish to take holiday whilst furloughed, the usual rules for notification (in their contract of employment or the default rules under the WTR) will apply. An employer may refuse a holiday request by serving counter-notice, which must be given at least as many calendar days before the date on which the leave is due to start as the number of days which the employer is refusing.

An employer who would like employees to take some holiday entitlement during a period of furlough leave (perhaps to avoid operational difficulties later in the year) can give notice of a requirement to take WTR holiday. Notice must be at least twice the length of the period of holiday that the worker is being required to take.

If you would like advice on any of the issues raised above or assistance with drafting a furlough agreement, please do not hesitate to get in touch with us.

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