Furlough/Sick Leave vs Holidays

[nightvision]

Can an employer take off an employee's holiday entitlement when employee is officially confirmed as suffering from Covid-19 and being on furlough/sick leave?

You can't be put on furlough purely for having a covid diagnosis. There has to be no work available for you.

For the majority of employees holiday pay is more than sick pay so some will take holiday so as not to lose money.

You can't be forced to take holiday whilst off sick though.

More info needed:
I'd you already had holiday booked you aren't automatically entitled to cancel the holiday and take it as sick leave if you're unwell when you should have been on holiday.

If you're unwell when you should have been at work they can't make you take it as holiday.

They are entitled to make you take any holiday in the month it is accrued while on furlough.

If you are off sick it is usual to cancel the holiday and have it later when you are well.

An employer can tell you when to take your holiday provided they give you two days notice for every day they want you to take off. However, there clearly isn't enough warning for them to give you the required notice in this situation. As you have to self-isolate for 10 days after a diagnosis, they need to give you 20 days notice before you take any time off, which is clearly impossible. So no, they cannot take it out of your holiday entitlement.

”More info needed:”

Thanks everyone for responding.

OK, here’s more info: I've worked for this large company for about 10 years. Traditionally, employees are asked in January to submit their holiday plans for the following financial year beginning April. In January this year I submitted my 6½-week entitled holiday plan (inc bank holidays) roughly as follows:

1 week each (all specific dates) in April, June, July, August, November, January and final half-week in February. Plan duly approved.

Unfortunately, towards the latter part of March I developed symptoms of Covid-19 and NHS 111 instructed me to self-isolate for 14 days and not go to work. I informed and sent my employer the appropriate documentation from NHS 111. However, my condition worsened by the end of March and I was admitted to hospital where I was tested and confirmed that I indeed had Covid-19 and was warded for a few days.

I volunteered to leave hospital to recuperate at home in early April so as to free up a hospital bed. This was at the height of the virus pandemic and the national lockdown. My GP had given me a sick note with immediate effect till the end of June. As I had not fully recovered by the end of June and had instead further developed other medical issues, my GP extended my sick leave till late September.

I have all this time been receiving my 4-weekly paycheque. However, I noted in the May paycheque, my employer deducted ½ week off my holidays followed by a full week in the following June paycheque. The rest of the paycheques till now have been “regular”. I’ve since returned to work this week for the first time this financial year.

I am just puzzled why 1½ weeks had been taken off my holiday entitlement whilst all this time I had been sick? Further, what happened to the govt’s promise of paying 80% of the employee’s wages while being furloughed (which I was)?

And here’s what the govt’s .gov.uk website says:

Sick leave and holiday
Statutory holiday entitlement is built up (accrued) while an employee is off work sick (no matter how long they’re off).
Any statutory holiday entitlement that is not used because of illness can be carried over into the next leave year. If an employee is ill just before or during their holiday, they can take it as sick leave instead.
An employee can ask to take their paid holiday for the time they’re off work sick. They might do this if they do not qualify for sick pay, for example. Any rules relating to sick leave will still apply.

When were you furloughed?

What were you actually paid? Did you get your normal wage, 80% of your normal wage or SSP?

Were you actually furloughed? If you were furloughed (rather than being on sick leave) then your employer was entitled to deduct holidays. If you were furloughed then you should have received 80% of your normal pay apart from the holiday weeks when you should have received full pay.

Do you have any contractual sick pay entitlement or is it just SSP?

Assuming your paycheck was "normal" It sounds like your workplace possibly chose to put you on furlough where you would be entitled to more pay rather than you having to live off Statutory Sick Pay of £95.85 per week from April til September.

You cannot be on furlough AND on sick at the same time.

You were in sick leave, not furlough.

I was furloughed the moment NHS-111 instructed me to self-isolate in the latter part of March. By end of March my Covid-19 was confirmed (still within the 14-day self-isolation period) and my GP issued the first sick note after the 14-day period. Paywise, other than the May and June holiday deductions, I had been paid "in full".

I interprete the 80% govt supplement to mean my employer will top up the 20% so that I still get my full pay (which I did). The puzzle is what's that got to do with my holiday entitlement?

Your employer confirmed that you were furloughed when instructed to self-isolate?

In which case what they have done is correct. If you were furloughed then your employer is entitled to use your holiday allowance at the rate you accrued it during furlough or during the weeks it was already booked. Your sick-notes were irrelevant.

It sounds like your employer kindly did top up your 80% furlough pay to full pay.

You could perhaps, have requested to be taken off furlough an put onto sick (in which case you would not have lost your holiday) but 99% of people would not want that as they would have had to survive on £95.85 per week sick pay with no government 80% top up.

You’re mixing up furlough and sick leave rules.

I think what you need to do is contact whoever does your payroll and ask them were you put onto furlough or were you on sick leave? You can't be on both.

Yes, employer confirmed I was furloughed right from the start back in March.

@nightvision

Yes, employer confirmed I was furloughed right from the start back in March.

In which case your employer is entitled to make you take holiday that you had booked/accrued, during your furlough period. It was unclear at first. Back in March around Easter time it appeared that employees on furlough could not take holiday but by the time the May bank holiday had come around the job retention scheme (furlough) rules had been updated and holiday could be used during furlugh.

The GP sick note(s) simply say I was "unfit for work" between this date and that date.

If you were on furlough your sick note was irrelevant.

OK, that being the case, why then no further holiday deductions were taken off me in July and August?

Not that I wish them to do.

In which case what they have done is correct

No, it isn't. It is about as far from correct as it could be.

Furlough was to be used when the employer had no work for employees. Placing an employee on furlough purely because they were instructed to self-isolate is contrary to the rules of the scheme. If the OP's employer has claimed under the scheme when there was work the OP could have done had she not been sick, their claim was fraudulent. If HMRC find out the OP's employer will have to pay the money back. However, that doesn't affect the OP directly. She won't have to pay her employer back. And she may have benefited in that, if she hadn't been placed on furlough, she would only have been entitled to sick pay which may have been less generous.

As per my earlier post, an employer can only direct an employee to take holiday by giving notice of at least twice the length of holiday. They cannot "use your holiday allowance at the rate you accrued it during furlough", nor can they order you to use holiday to cover the period you are self-isolating as they cannot give you the required notice.

@nightvision - On the information posted, it sounds like you should have been receiving sick pay while you were ill. Although your employer's actions were wrong, it may be that they have left you better off than you would have been if they had got it right. However, looking at the holiday issue in isolation, I can't see any justification for them taking half a week of your holiday entitlement in May. There is some justification for June as you did have a week booked but you should have had the choice as to whether to take that as sickness or holiday.

We don;t know whether the OP's employer had work or not. The company I work for had our work halved overnight. Those who were ill or isolating were prioritised for furlough.

We took advice and based based on our holiday scheme ( we deducted booked holidays and bank holidays for those on furlough. I'm assuming the half week in May was actually the two days bank holiday that occurred). Of course in an industry that does not routinely take bank holidays off that would not be relevant.

My employer has plenty of work to do every day. The work cannot be taken home to do and must be done on site. The boss told me other than myself, more than 30 other colleagues had been furloughed in March/April but all had returned to work after the self-isolation period. None had tested positive for Covid-19. I'm the only unlucky one.

If your employer has been claiming from the government it sounds like they have thoroughly abused the furlough scheme. Of course, if they've been placing people on furlough without claiming from the government that is another matter.

The employer should not have put people on furlough purely becasue they were self-isolating. But there was a lot of pressure in the early days to do so by those who couldn't understand why they coudn't get 80% of pay instead of SSP. Plus of course if there were a lot of employees involved it would be very difficult/non financially viable to pay them all SSP (which comes out of their own pocket unless a very small employer) for two weeks whilst not working. (my company has sickness insurance which would have paid out but that's rare I guess.

So it is a bit grey but it sounds like you were certainly better off financially out of it than you would have been on SSP.