Employer cancelling my leave whilst colleagues still on furlough

[Muppetry76]

Asking for a friend -

M has been working throughout covid. Attempted wfh in the first few weeks but was impossible from a business perspective so returned to office, all measures in place etc. 2 other colleagues in, rest furloughed due to decline in business,however workload increased for M massively due to others not being in. Holiday booked for August abroad. Employer saying all leave is cancelled indefinitely (despite having furloughed staff that could be swapped in, non critical job, no business reasons). 80% of colleagues been sat at home since April whilst M has not had any time off since Feb.

Can employer force colleague to cancel leave and refuse to unfurlough another colleague to cover them in these circumstances? Don't even start on the quarantine issue - boss has already commented/stipulated that should leave be allowed, M will be a huge risk and must quarantine upon return no matter what the government advice is at the time, which they're trying to use against M.

Any advice please? TIA

looks like the quarantine will be gone anyways if you check the news.

I would tell your friend to speak to their union. They are best placed to advice.

It’s legal for an employer to cancel annual leave if they provide the correct notice - I believe twice as long as the period of leave to be taken. Could M try and have a word with her employer and ask that the situation be re-reviewed in a few weeks time when things might be different and they might be looking to bring people back off furlough anyway? If they bring colleagues back from furlough then it has to be for a certain period of time - they can’t just bring somebody in to cover for a week here and a few days there and have them back on furlough in the intervening weeks so if they do unfurlough people they have to be confident there’s going to be enough ongoing work to have them and the person whose leave they were covering working at the same time afterwards.

I think your friend needs proper union or ACAS advice.

I do remember murmurings at the beginning of lockdown restrictions that the government mandated annual leave could be carried over to next year but I don’t recall whether that was just public service employees.

My personal view is your friends employer is being short sighted and faintly hysterical. If they want to impose a fourteen day quarantine for travel abroad that’s up to them but if it’s against current official advice they have no actual authority to impose it on anyone and enforce consequences.

Not allowing your friend to take annual leave is also really shortsighted, she’s legally going to have to take it at some point and they’re obligated to ensure that she takes at least the statutory minimum. I think it’s twice the length of the time off needed for notice to cancel which they’re entitled to do but again it’s very short sighted.

I wouldn’t comment on furloughed employees, it comes across as a bit whiney, although I don’t know how annual leave builds up for people on furlough? Is her employee going to end up trying to cram everyone’s years entitlement into a couple of months because that’s unlikely to make business sense either.

It’s legal for an employer to cancel annual leave if they provide the correct notice

But only with good reason, and the employer isn't giving one. It's not an 'essential' business, there are many colleagues on furlough (I know the rules are changing so could be 'swapped' even if it means M has their holiday then has the rest of their swapped time at furlough rate whilst swapped in colleague gets full pay) and its not a busy season for them hence leave granted originally.

M is at breaking point having not had a day off since early Feb whilst working at crazy capacity as too many colleagues furloughed. Even if they planned to sit on the sofa for a week boss is refusing, has stated that they wouldn't know what to do if M was sick. Would M have any sort of case for constructive dismissal?

M would only be furloughed now if they have been furloughed in the past. The rules have changed slightly.

you talk about a lot of things up to constructive dismissal. It's all rather complex and noone here will be able to tell you.

You may think that the reason for canceling the holiday is not good enough but you don't have any leverage to challenge this.

You or M need to speak to their trade union. There are so many variables and we dont know what the contract says either, how long they have been employed etc. Someone who know this stuff needs to look at all the specifics of that case and that would be your union. If you aren't in one then this is unfortunate and Acas is your best call but noone here can sort it - not matter how unreasonable you view the employer and his actions (and I agree, they sound awful).

could a couple of staff being un furloughed part time work?

But only with good reason, and the employer isn't giving one

There is no requirement for the employer to have a good reason or to state any reason at all. Under the Working Time Regulations 1998 the employer has the absolute right to cancel an employee's leave provided the cancellation does not leave the employee in a position where they are unable to take their full statutory leave entitlement in the year.

Would M have any sort of case for constructive dismissal?

M needs to consult an employment lawyer to get a definitive answer but, based on the information you have posted here and on your other thread about this situation, my view is that M does not have a case.

Yes, the employer could unfurlough someone and allow M to take the holiday but there is no requirement for them to do so and, of course, if they did go down this path it would increase their costs. I would be unhappy if I was M but legally the employer is not doing anything wrong.

This is why the furlough system is a joke.
Ironically employees on furlough would be allowed to go on holiday, and not even use their annual leave!

Shame she can't just tell her boss she has symptoms and has to stay home (then go on her holiday).

I'm not legally qualified, but presumably if M now cancels her foreign holiday she'll lose all her money?

Is the employer going to refund all of that to her? Or just expect her to cheerfully come into work without a care in the world - and not seething about the 2k or whatever she has forfeited? Seems unfair.

Is the employer going to refund all of that to her

It is normal for the employer to refund any travel costs that can't be recovered through travel insurance in this situation. If they don't M may have a claim against them.

I think you’ll find the having colleagues on furlough will count as essential for the business if boss says they can’t afford to unfurlough them.

This situation currently quite common amongst my friends. One friend is furloughed and her job share hasn’t been allowed any annual leave during the whole period.