Forcing employees to take holiday leave as part of lockdown could be unlawful, according to a leading employment lawyer.

The advice comes as the UK is in its second national lockdown and has implemented a furlough scheme that is likely to last until the spring of 2020 with further pressures on employers to cut costs.

Sarah Bowen, a barrister at 3PB (3 Paper Buildings) and a member of the Birmingham Law Society, says that employers should not assume that forced holiday leave is the answer.

“Some employers might take the view that it is more cost-effective for staff to take holiday during furlough – when the employer can recoup up to 80% of pay with a £2,500 limit each month under the furlough scheme – rather than when they come back into work. However, there has been no assurance issued so far that the furlough scheme will apply in exactly the same way and employers need to be careful not to assume that the same rules will apply again.”

Specifically, the COVID-19 guidance on holiday entitlement states that it is necessary for an employer requiring an employee to take holiday during furlough to consider any restrictions the worker is under, such as the need to socially distance or self-isolate, and if they could prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of a holiday.

Bowen says this is a very difficult assessment for an employer to make.

“The second lockdown will be enforced by criminal law and it may be impossible for the employee to relax and enjoy leisure time, which would mean that the purpose of the holiday cannot be met.

“This may therefore mean that employers forcing staff to take annual leave might be found to be acting unlawfully. What’s more, under the Working Time Regulations 1998, workers may have the right to reject an instruction to take annual leave on the basis that it is not reasonably practicable as a result of the effects of the coronavirus.

“The problem for employers is that this issue has not been settled and it will be a matter for the Employment Tribunal and Courts to determine in due course, once claims make their way through the justice system.”

Bowen says the government’s guidance on untaken holiday is also ambiguous.

“Under legislation holiday may be carried forward into the following two leave years if it was not reasonably practicable to take it because of the effects of COVID and the guidance does suggest that it envisages those on furlough are unlikely to need to carry over leave as they will be able to take it during furlough. This though does not address the issue of the purpose of leave and whether it will be possible to meet that purpose during periods of lockdown.”

Furthermore, an employer giving notice to a worker to take annual leave must check they have the right to do so under the contract. “The employee’s contract is another area of ambiguity,” says Bowen.

“If the contract does not give this right then the employer could rely on the notice provisions in the Working Time Regulations 1998, but the legal position remains uncertain. What’s more, employers must give notice at least twice the length of the period of leave that the worker is ordered to take.

“My recommendation is to take advice. The issues of lockdown holiday, the guidance being offered and what can and can’t be forced on an employee is ambiguous at best. Employers should ensure that what they are asking their employees to do is in line with their legal obligations and the employee’s contract.”