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Legal matters

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Furlough/Sick Leave vs Holidays

41 replies

nightvision · 28/09/2020 13:11

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?

OP posts:
FunnyInjury · 29/09/2020 21:11

prh47 employers could furlough instead of sickness or maternity etc.

Also, many people are still furloughed due to childcare or shielding issues.

Lack of work is not the only reason to use the furlough scheme Smile

prh47bridge · 29/09/2020 23:33

@FunnyInjury - No, they could not use furlough as an alternative to sick leave or maternity leave.

The Coronavirus Job Retention Scheme Direction issued by the Chancellor on 15th April specified that an employee could only be furloughed if they had been instructed to stop work "by reason of circumstances arising as a result of coronavirus or coronavirus disease". Maternity clearly does not meet that definition, nor does non-Coronavirus sickness. The Direction also specifically stated that time when the employee was eligible for sick pay did not count towards the period of 21 calendar days required as the minimum period off work to qualify for the furlough scheme.

The scheme has changed several times. However, the current guidance to employers continues to state that self-isolation and short-term sickness should not be a consideration in deciding whether to furlough an employee. An employer can, however, furlough an employee who is off sick provided they have business reasons for doing so and are not putting them on furlough simply because they are sick.

nightvision · 30/09/2020 15:59

”If your employer has been claiming from the government it sounds like they have thoroughly abused the furlough scheme.”

Grin Grin Grin I’m laughing because that doesn’t surprise me - judging by the way they treat some of the employees. . .

”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.”

Firstly, I want to make a correction. I mentioned earlier that I had 1½ weeks holiday entitlement deducted from me by the end of June. On closer examination last night, it was in fact weeks being deducted by the end of June and not 1½ weeks. In other words, it’s almost half of my annual holiday entitlement! In any case, my “plan” was only for 1 week in April and 1 week in June.

But the so-called “holiday-plan” in January for the coming financial year that I mentioned earlier is just that, a plan, and not set in stone. That’s not even a company policy; just a practice devised by some line managers to make their lives easier. Most people change their plans in the course of the year. Some don’t even bother to submit their plan in the first place.

But just for argument’s sake: if I had (say) submitted a plan to take the whole 5½ weeks holiday entitlement off in the month of May and first half of June (say) to visit a relative in New Zealand but only to fall ill in April stretching till September, does it mean to say I won’t be entitled to any more holidays till next year in April?

To confuse matters even more, this is what I found in another UK govt website entitled:

Holiday entitlement and pay during coronavirus (COVID-19)

”…. 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.”

"Resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday". Tell me about that when you're lying stricken in bed wondering if your Maker is just next door waiting to meet you!

OP posts:
FunnyInjury · 30/09/2020 19:25

I've just checked as I do realise the furlough rules have changed over time, but it definitely still says employers can consider fuloughing for sickness, maternity, childcare etc

Furlough/Sick Leave vs Holidays
Furlough/Sick Leave vs Holidays
prh47bridge · 30/09/2020 21:30

That is the guidance for employees, not the guidance for employers. And it does not say what you claim it does.

It does say that employers can furlough you if you have caring responsibilities arising from coronavirus. That does not mean you can be furloughed because you have non-coronavirus related caring responsibilities.

It correctly says that you may be eligible for furlough if you are on sick leave or self-isolating. It does not say that you are definitely eligible. The guidance for employers is clear that the fact that an employee cannot be furloughed purely because they are sick or self-isolating. An employee who is sick or self-isolating can be furloughed provided that is not the reason they have been furloughed.

The guidance for employees covers the interaction between furlough and maternity leave. It does not say that your employer can choose to put you on furlough just because you are currently on maternity leave. Under the terms of the scheme the employer cannot do so as maternity leave is clearly not something that arises as a result of coronavirus. As with sickness and self-isolation, an employer can furlough an employee who happens to be on maternity leave provided they are not being furloughed purely because they are on maternity leave.

Todaythiscouldbe · 01/10/2020 08:44

But just for argument’s sake: if I had (say) submitted a plan to take the whole 5½ weeks holiday entitlement off in the month of May and first half of June (say) to visit a relative in New Zealand but only to fall ill in April stretching till September, does it mean to say I won’t be entitled to any more holidays till next year in April?
Well, yes, exactly as it would have been if you had taken all of your holiday in one go in a normal year. That's pretty irrelevant.

nightvision · 03/10/2020 10:30

"Well, yes, exactly as it would have been if you had taken all of your holiday in one go in a normal year. That's pretty irrelevant."

What's pretty irrelevant? Is this your imagination or are you an employment lawyer? Judging by your simplistic respond to this thread, I pretty much doubt so. Particularly when you don't or can't even read the latter part of my last posting on "Holiday entitlement and pay during coronavirus (COVID-19)"

OP posts:
Xenia · 04/10/2020 09:15

HMRC are starting some investigations into abuse of the furlough rules. Anyway if this were an abuse of furlough presumably the employee might be obliged to pay back the full pay and just get a £97 a week sick pay instead so might be best not to cause a fuss over holiday leave being used during the period. For those of us including this poster who pay a lot of tax we are all hoping that furlough abuses are investigated and the money recovered.

SoloMummy · 04/10/2020 09:58

Where I work, anyone in furlough or has been on furloughing has automatically had their annual leave entitlement reduced to the fraction of the year. This is legal and sounds as though what has happened. Not really sure of the issue.
In theory not doing this means @nightvision could return to work and then take 6.5 weeks annual leave.

converseandjeans · 04/10/2020 10:23

It sounds like they just kept to the schedule you submitted. Are you hoping to carry across the holiday to next year? I personally wouldn't do that if I had actually had paid time off already. It sounds like you have been on full pay and not been in work. I don't know if being ill is relevant - surely it's just bad luck if you get ill when you've booked time off?

prh47bridge · 04/10/2020 10:40

@SoloMummy

Where I work, anyone in furlough or has been on furloughing has automatically had their annual leave entitlement reduced to the fraction of the year. This is legal and sounds as though what has happened. Not really sure of the issue. In theory not doing this means *@nightvision* could return to work and then take 6.5 weeks annual leave.
No, it is not legal. It sounds like your employer is breaking the law.

You continue to accrue holiday entitlement whilst on furlough. Your employer cannot reduce your holiday entitlement on the basis you were on furlough. See www.gov.uk/holiday-entitlement-rights/workers-on-temporary-leave-furlough.

Your employer can force you to take holiday whilst on furlough by giving you twice as much notice as the holiday they want you to take. You must receive your normal holiday pay for any period you are on leave even if that is more than you are being paid on furlough.

Yes, the OP could return to work with her full holiday entitlement intact. If the employer wanted to avoid that they should have given her appropriate notice that they required her to take holiday whilst on furlough and paid her appropriately. It does not appear they have done that, so she is entitled to return to work with her full annual leave entitlement intact.

converseandjeans · 04/10/2020 17:58

You continue to accrue holiday entitlement whilst on furlough.

So there's going to be loads of people who have accrued 6+ months worth of holiday that they can take next year? Some companies will struggle with this surely?

prh47bridge · 04/10/2020 19:10

@converseandjeans

You continue to accrue holiday entitlement whilst on furlough.

So there's going to be loads of people who have accrued 6+ months worth of holiday that they can take next year? Some companies will struggle with this surely?

Indeed. The Working Time Regulations have been amended to allow employees to carry forward any of their statutory entitlement they haven't been able to take due to coronavirus. They can take it at any time within the next two holiday years. Any additional holiday beyond the statutory minimum is a different matter. Employers can set their own rules on this.
nightvision · 04/10/2020 19:22

”HMRC are starting some investigations into abuse of the furlough rules. Anyway if this were an abuse of furlough presumably the employee might be obliged to pay back the full pay and just get a £97 a week sick pay instead so might be best not to cause a fuss over holiday leave being used during the period. For those of us including this poster who pay a lot of tax we are all hoping that furlough abuses are investigated and the money recovered.”

I find this post quite irritating if not downright offensive. Don’t know what you’re trying to say; or maybe I’ve a good idea what you’re saying. Nobody is talking about fraud or the abuse of the furlough system or any system for that matter. But one thing you’re right – abuses must be investigated and the money recovered. Furthermore, you’ve no idea how much tax(es) both my other half and myself pay. . .

But please also be aware that abuses can occur in either way or more correctly, any which way. It’s not always the case that the private individual or employer is “abusing” HMRC. Only this year in January/February we got a huge refund from HMRC (thousands of £s) thanks to the intervention of our MP on our behalf! So do you call this HMRC had been “abusing” us?

I am not born yesterday not to understand there are indeed people who have nothing but fraud in their minds. This is not what this thread is about.

More often than not, mistakes are made unintentionally. Particularly so in the current state of affairs when Covid-19 is still raging with no end or cure in sight. The govt themselves don’t even know sometimes where their head is and which way their tail is wagging. They have guidance galore some of which seem to contradict themselves if you care to read them properly. Individual ministers themselves seem to sing from different hymn sheets! One minute we’re going to have “herd immunity” to deal with the virus and no, the next minute we’re going to have a total lockdown.

Sorry, we mean no more than 2 people from different households. . . eh… 6, we mean, er. . . (wtf)…

And this thing about “holiday pay”. . .

Some of you guys seem to me to be incredibly naive! You’ve totally lost sight of the maxim: There’s no such thing as a free lunch! Right from the start, an employee/individual’s worth in their position is determined by how much they are worth in terms of £s over a year. This figure is then divided into 13 parts; 12 parts of which are given to you as a monthly salary (or similar) and the 13th part is given to you as your “HOLIDAY”.

It is YOUR money! Don’t be fooled!!!

OP posts:
Xenia · 05/10/2020 09:06

This is quite interesting from the FT 2 Sept 2020 and I believe organised crime stole a lot of the money in a big way.
"The UK may have paid out up to £3.5bn in furlough money on fraudulent or mistaken claims, the tax authority disclosed on Monday.

Jim Harra, the head of HM Revenue & Customs, told MPs that between 5 and 10 per cent of money distributed through the coronavirus job retention scheme was likely to have been because of error or fraud.

Since it launched in April, the scheme has paid out £35bn and been used by 1.2m employers, enabling 9.6m jobs to be furloughed.

Speaking to the Commons public accounts committee, Mr Harra said HMRC’s focus would be on tackling abuse and the resulting fraud.

“We are not going to set out to try and fine employers who have made legitimate mistakes in compiling their claims because this was obviously something new that everyone had to get to grips with in a very difficult time.”

The tax office would be writing to employers to give them the opportunity to correct mistaken claims and repay excess amounts, he said.

Mr Harra also revealed HMRC’s hotline for reporting furlough fraud had received 8,000 calls so far. In total the tax authority was investigating 27,000 “high-risk” claims.

Richard Holden, MP for North West Durham, asked Mr Harra what was being done about employers who failed to pay money to their employees — saying several of his constituents had been furloughed but not received the government money.

Mr Harra said employers who did not pass on grants to their employees would not be entitled to the money and HMRC would be able to claw back the funds.

Due to the unprecedented nature of the initiative, the tax authority had used “best available comparisons” from other grants and benefits systems, such as tax credits, to estimate how much money had been wrongly paid. HMRC was keen to stress that the lack of directly comparable data meant the estimate of how much money had been paid out “needs to be heavily caveated and qualified”.
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The Treasury has been sensitive from the start to the potential abuse of the scheme. One reason ministers were initially reluctant to let employers furlough workers part-time (a flexibility permitted only since July) was because it would be difficult for HMRC to check they were claiming for the correct number of hours.

However, a study by researchers at the universities of Oxford, Cambridge and Zurich, based on a survey conducted in April and May, found that the UK's prohibition on working while furloughed was “routinely ignored”, especially by men who were able to do most work tasks from home.

Around a fifth of furloughed employees had been explicitly asked to work by their employer, but many more reported working without being told to do so. "

converseandjeans · 05/10/2020 18:56

prh47
They can take it at any time within the next two holiday years.

I think this will be chaos for businesses (especially small family run ones) & will also cause resentment from employees who had to go in and work on site while others were on furlough. Many on furlough got full pay - so in theory have had in some cases almost 6 months off on full pay & will be allowed to claim back holiday days. I think it's a minefield tbh.

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