Employer taking holiday pay because of furlough, months later.

[Foobydoo]

DH has been told he will have five days taken from his holiday pay because of furlough. Can his company do this?
He was furloughed from March to May.
His boss topped his pay up.
He works for a very small company with no HR.
Boss is a good and fair boss but is often not up to date on current law and practice.

Are you saying he is being told he must use five days annual leave?

He has been back at work since May, he should have 7 days holiday left but has been told it has been reduced to 2 days because of lockdown and being furloughed.

As far as I am aware, the employer could have insisted he used holiday during furlough as long as pay was topped up to 100% for holiday days. However, I'm not sure that can be applied retrospectively. When does the holiday year run from?

The holiday year runs January to December.
There was no mention of this whilst furloughed and all staff have been back since May.
Some of the staff only got the 80% but DHs boss topped him up. He is usually a good boss and is flexible with DH as we have a child with asd. DH doesn't want to complain when boss has been good to him in the past but 5 days is a lot, he only gets statutory holidays.

So he'd used 13 days before March? It's not entirely unreasonable to expect to use 5 days during 3 months furlough but it's unreasonable to do that retrospectively. Are all staff being told to take 5 days?

All staff havent been told yet but they are all having 5 days taken off them, there are less than 20 employees.
He had five days off at the beginning of July and one day before the pandemic. The other days are bank Holidays, days for Christmas shutdown in Jan and days to be saved for December Christmas shutdown. He should have had seven left but it has been reduced to two.

I would suggest speaking to ACAS, it will depend on the wording of the furlough agreement.

Huh. I'm pretty sure that they aren't allowed to reduce hols below the statutory minimum so would think it's illegal before you even get started. If it's discretionary holiday that's different, they can reduce it (but think it has to be agreed in advance as a contractual variation).

If it's a question of saying he took 5 days leave while on furlough that's slightly different, but that only works (I think) if it was agreed between the employer and employee in advance, not retrospectively. Might some of it be the bank holidays that fell during his furlough period, if those are counted in his holiday allowance?

I do feel for employers though. There was a lot of early confusion as to whether employees accrued and could take leave while on furlough. The guidance wasn't published for 7 or 8 weeks after the scheme was opened, by which point a lot of employees were already back at work.

Lots of companies are requesting that annual leave is used at this time as usually the money is accrued already rather than taking from cash flow to pay them.

It is allowed. I don't know if there is a limit to the days but DPs work requested people use two weeks of annual leave and my work just gave us all paycuts.

They can’t insist he takes holiday after the event. To require an employee to take holiday on specific dates, twice as much notice must be given as the length of holiday they want the employee to take.

The exception would be if he would already be expecting to take those days off- so if his contracts says he gets bank holidays off, for example, the employer wouldn’t have had to give specific notice of those during furlough.

If their pay has been made up to 100% then yes it is legal for some holiday to be taken during the furlough period, however this needs to have been clear in advance.

This kind of goes against the grain to say this though but the company will probably be really struggling, and having topped up his pay to 100% when they didn't have to for 3 months perhaps allow a bit of reciprocal leeway?

Just thinking... does his boss think that because your DH spent (for example) 2 months off on furlough, then his full holiday entitlement on (example) 20 days now needs to be pro-rata down to account for the fact he wasnt working for 2 months (basically treating him like he needs a part time leave allowance)

Are the company using the holidays to cover the top-up they gave your DH to take him up to 100 per cent? Which is allowed but as PP have said, I'm not sure about retrospectively and holiday days should be paid at full rate.

We told employees of the charity I’m a trustee for that we wanted them to take one week’s AL during furlough but it was all agreed in advance. I can totally see why your DH’s boss would feel it’s reasonable, but it’s not legal to just post facto declare some of the time holiday.