Can my employer do this?

[gilmoregirls00]

I was due to return from sick leave next week but due to my illness my manager decided I should be furloughed (100% pay). I have been off sick since June and have taken no holidays this year so have accrued 5 weeks of holiday.
My manager told me that for the first 5 weeks of furlough I will be using my holiday allowance and then if I still need to be furloughed after that I will be on furlough pay then.
Can my employer do this? I have a holiday booked for the end of March and if I am back from furlough by then I won't have any holiday available to take it.

In most circumstances, your employer can decline a request for annual leave (e.g. for operational reasons, including staff cover etc.) but cannot require you to take leave solely at their discretion unless your contract allows for this. (Contacts may be determined by custom and usage, as well as in writing.)

However, you might be on thinner ice insisting that you be allowed to carry over leave if you are fit to return to work now, and able take that leave, before the end of the leave year. There's almost 12 weeks of your leave year left so I wouldn't bank on winning this argument.

Even if you could win a grievance and/or employment tribunal case, ask yourself if you want the hassle.

I would propose a compromise: tell your boss that you really want to take one week's holiday at the end of March and want to save five days' entitlement till then. Meanwhile, agree to four weeks now.

Yes they can because it's accrued from last year.

@Dee1975

They need to give you notice to tell you when you take annual leave. For 5 weeks leave they need to give 20 weeks notice. Unless they are saying you can’t roll over I guess (check your contract on that). Then I guess you have no choice - use it or lose it. So you may as well use it. But tell them the weeks you want as annual Leave. They can’t tell you at this short notice.

You may want to brush up on your employment law knowledge. They only have to give twice as much notice as the time they want you to take so only need to give 10 weeks for 5 weeks leave. However they could alternate and ask OP to take 1 week at a time so 1 week on 1 week off so may of 2 week notice for that way

Surely you have already boked that week off in march, so you only have 4weeks annual leave to use before going on to furlough?

If you haven't booked the leave off with work that thats your own fault. Always get it approved by work first before making plans

I disagree with the comments that say they can do this. Your employer can tell you when to take leave, but they have to give you sufficient notice. If they wanted you to take the next five weeks as annual leave then they needed to tell you ten weeks ago. They could perhaps do a process of giving you two days notice to take a day leave and wear through your leave like that.

That is the legal stand point of course. I would probably have legally sacked you on the basis of capability by now. So I wouldn’t be making waves.

It depends on your contract. My previous jobs contract stated they could allocate up to 2 weeks of my holiday a year.

They tried to make me use my whole holiday allowance while I was furlough during the summer (which would have left me with no holiday days for the 6months from Aug 2020 - March 2021). I pointed out what my contract said and we agreed that I'd use the 2 weeks while furlough and they'd top my pay for those two weeks up to 100%.

What's the standard number of days the company lets you carry over each year (regardless of sickness)? Maybe you could come to an agreement with them and carry over that amount of days, have your week in March and then agree to use the remaining days during the furlough period.

You will have accrued leave from whilst you were off sick presumably so need to use that, then surely you will have a new allocation of leave for this year which you can use for your March holiday ?

Have you accrued the 5 weeks already? Or do you have 5 weeks to take before April? Surely if holidays are accrued as you go, you still have 3 months left, so would only be able to take holidays you have accrued upto next week? Leaving what, just over a week of holidaya left to accrue in 3 months?

OP the legal position is this - yes, they can require you to take annual leave on furlough WITH THE CORRECT NOTICE. For five weeks continuous leave, they need to give you ten weeks notice. So they cannot legally require you to take annual leave unless it starts in ten weeks time. Your contract doesn’t affect this - statutory rights override any contractual term and this is written into the Working Time Regulations.

Secondly, if you’re prevented (or cannot reasonably take) annual leave during this leave year, you’re entitled to carry it over to the next leave year, because of your period of sickness.

I would refer your employer to Section 15 of the WTR as a starting point re notice and there’s a heap of case law supporting your right to carry your leave over if you can’t reasonably take it.