How To Manage Annual Leave Requests After Furlough
With the coronavirus pandemic, some employees will be on furlough meaning they are not working. However, it is important for employers to note that employees who are on furlough still accrue annual leave. This is because the contract of employment continues during this period.
Employees are permitted to take annual leave while on furlough, without their furlough period coming to an end. If they choose to do so, the organisation will need to top up their pay to 100% of their normal wages if they are receiving reduced pay while on furlough.
Dealing with Excess Annual Leave
As the UK draws closer to the end of lockdown and employees return to the workplace from furlough, managers may be in a situation where a number of employees will ask to take annual leave at the same time, particularly when they have leave to take before the end of the leave year. Where possible managers should allow the leave however, they need to ensure business continuity therefore they will need to balance the employee’s request about the timing of leave against the needs of the business.
Line managers may wish to require employees to take annual leave during furlough, for example to avoid a build-up of leave that employees will need to take when they are back at work. If an employer requires an employee to take annual leave while on furlough, the employer should consider whether any restrictions the employee is under, such as the need to socially distance or self-isolate, would prevent the employee from fully utilising their annual leave for the purpose of resting, leisure time etc. Managers should be aware of the company’s approach to annual leave for the period of furlough before making any decisions.
Standard employment law provisions state that employers can require employees to take annual leave as long as they give twice as many days’ notice as the period of leave the employee is required to take. For example, if the employer requires the employee to take two week's annual leave at a certain time, the employer must therefore give the employee at least four weeks' advance notice (or what is outlined in the contract of employment).
Bank Holidays & Furlough
Where a bank holiday falls within an employee’s period of furlough and the employee would have usually worked the bank holiday, their furlough will be unaffected by the bank holiday. However, if the employee would usually have had the bank holiday as annual leave, the employer should either pay the employee in full for a bank holiday or allow them to take a day's annual leave at a later date.
If a worker on furlough takes annual leave, an employer must calculate and pay the correct holiday pay in accordance with current legislation. It is not permitted for an employer to buy out an employee's statutory annual leave entitlement, i.e. give the employee a cash substitute (except on termination of employment). This prohibition on buy-out applies to the entire period of statutory annual leave, i.e. 5.6 weeks. Where an employer grants annual leave in excess of the statutory minimum, the employer is free to make its own rules and arrangements regarding buy-out in respect of the portion of annual leave that exceeds the 5.6 weeks.
To prevent workers losing their holiday and to enable key workers to keep working, the normal rules on carrying over annual leave have been modified. The Government has amended reg.13 of the Working Time Regulations 1998 to allow workers to carry over up to four weeks' annual leave into the next two holiday years, where it has not been feasible for them to take it as a result of the effects of coronavirus. These amendments to the Working Time Regulations 1998 apply to all employees.
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Carry Over of Annual leave – Government Relaxes Rules
The rules in relation to the carry over of annual leave have been temporarily relaxed to deal with the coronavirus disruption.
The Government has announced that employees and workers who are unable to take their annual leave due to coronavirus may carry over up to four weeks’ paid holiday into the next two leave years.
The Working Time (Coronavirus) (Amendment) Regulations 2020 will amend the Working Time Regulations 1998 to create an exemption relating specifically to the coronavirus outbreak.
Employees may be unable to take their annual leave for a number of reasons, including:
- they are working in key sectors and due to work demands cannot take annual leave,
- they are self-isolating or are too sick to take holidays before the end of their leave year,
- they have been temporarily sent home, placed on layoff or furlough leave.
If an individual leaves their job, either by resigning or due to dismissal during the two-year period, any untaken paid holiday must be added to their final pay. The government has stressed that employers should ensure in so far as possible that workers have adequate opportunity to take their holidays. An individual should not be paid in lieu for holidays unless they are leaving.
The change will apply to most workers including agency workers and those on zero-hours workers.
The temporary change relates only to 4 weeks leave. Employers who do not currently have a policy on the carry over of leave, may decide whether they will allow for extra holidays to be carried over. Extra holidays may include;
- the remaining 1.6 weeks of statutory leave,
- any contractual holiday entitlement above the legal minimum.
Coronavirus Job Retention Scheme & Furlough Leave
The below are some of the key points in relation to the Coronavirus Job Retention Scheme, we will update as more information becomes available.
What is it?
The Coronavirus Job Retention Scheme allows all UK employers to access financial support to continue paying part of their employees salary that would otherwise have been laid off due to Covid-19. It prevents against layoffs and redundancies.
What organisations are eligible?
All UK companies are eligible: limited companies, sole traders who employee people, LLPs, partnerships, charities.
Which employees are eligible?
Furlough leave is available to all employees on a contract, including;
- full-time employees
- part-time employees
- employees on agency contracts
- employees on flexible or zero hour contracts
How does it work?
- The employer must designate affected employees as furloughed workers.
- They should notify the employee that they have been marked as Furlough. Agreement from the employee may be required.
- HMRC must be notified of the employee designated as furloughed workers as well as details of their earnings. This is done through an online portal (not currently set up).
- HMRC will reimburse 80% of furloughed workers wage costs, based on the February earnings of salaried workers, up to a cap of £2,500 per month.
- Wages for those on variable hours, can be calculated based on the higher of either:
- the same month's earning from the previous year
- average monthly earnings from the 2019-20 tax year
If the employee has been employed for less than a year, employers can claim for an average of their monthly earnings since they started work.
- Employees remain employed, their continuity of service is not impacted.
- Employer may choose to top-up the other 20% of salary. If they don’t top-up the 20% it will be a deduction in wages.
- Wages paid through the Scheme are subject to the usual income tax and other deductions.
What are the employment issues?
Changing the status of employees to a furloughed worker remains subject to existing employment law. Generally, where an employee’s contract contains a layoff or short term clause employers should be able to place employees on furlough leave. Where there is no such clause, it is best advised to get agreement from the employee.
Additionally, a 20% reduction in salary will be a change in terms and conditions of employment. Where employers are not topping up the government payment, they should also seek agreement from the employee.
Given the current situation and the alternatives for those employees should they not agree, one can expect that most employees will agree. That said, prudent employers will seek to get their employees agreement as part of their furlough leave process.
Please see a sample letter to notify your employee that they have designated as a furlough worker here.
Employment Law Changes 2020
This April sees a number of significant employment law changes. To help you keep up-to-date and ensure you are prepared for the changes we have outlined some of the key changes below.
Parental Bereavement Leave
The Parental Bereavement (Leave and Pay) Act 2018 will come into effect this April. It is often commonly referred to as “Jack’s Law”, after Jack Herd whose mother campaigned for statutory leave following the death of her son.
Under the Act, employees who lose a child under the age of 18, or suffer a stillbirth from the 24th week of pregnancy will be entitled to two weeks leave. This will be a right from day one of their employment.
Employment Contracts a Day 1 Right
Currently an employer must give all employees a written statement of their terms of employment within two months of starting employment. From April the written statement must be given on the first day of employment. Additionally, the right to a written statement has been extended to workers as well as employees. Employers will need to be sure that they have processes in place to ensure they can meet this deadline.
Holiday Pay Changes for Variable Workers
Currently, the holiday pay reference period is 12 weeks. From 6 April 2020, the holiday pay reference period will increase from 12 weeks to 52 weeks. When calculating an employees’ holiday pay entitlement an employer will now be required to look back at the previous 52 weeks where a worker has worked and received pay, discarding any weeks not worked or where no pay was received, to calculate the average weekly pay.
It is hoped that this change will help to even out the variation in pay for workers, particularly those in seasonal or atypical roles.
National Minimum Wage Changes
The rates for the national minimum wage will increase on 1 April 2020. The national living wage rate, for workers aged 25 and over, will increase from £8.21 to £8.72. Click here for further details.
How to Prepare
Employers are well advised to review their contracts of employment with staff and put practices in place to ensure the correct information is provided within the correct timeframe.
To find out more about these topics and other legislative changes, register for our webinar here.
Parental Bereavement Leave
Research suggests that 1 in 10 employees are likely to be affected by the death of a loved one during their employment. In response to this, "Jack’s Law" has been introduced through the Parental Bereavement (Leave and Pay) Act. This will come into force in April 2020 and now gives employed parents, who have lost a child, the right to take paid statutory leave to allow them time to grieve.
Who is entitled to this leave?
All employees have a ‘day one’ right to this bereavement leave. Parents and primary carers will be entitled to paid bereavement leave if they have been employed for a continuous period of 26 weeks. Female employees who suffer a stillbirth after 24 weeks of pregnancy will still be entitled to up to 52 weeks of maternity leave and/or pay, as will a mother who loses a child after it is born.
What is the entitlement?
- Bereaved parents will be entitled to take two weeks’ bereavement leave.
- There are rules around when this leave is available to be used and how it should be taken.
- Paid bereavement leave is paid at the lower of £151.20 a week or 90% of salary. As this is a statutory payment, it is at the employer’s discretion if you wish to top-up this amount.
Employers should now put plans in place to introduce and manage the Parental Bereavement Leave policy. You will need to determine if you will give a top-up payment and the approach you will take to communicating this to your staff.
Other considerations
Different religions have their own bereavement traditions and funeral rites. If you were to refuse an employee to observe their beliefs and customs, it could amount to religious discrimination. Employees who suffer a loss may experience mental health issues such as depression and/or anxiety. This could constitute a disability under the Equality Act. It is advisable to look into further training on the Equality Act to prevent potential issues from religious discrimination or mental health arising.
The Bright Contracts Handbook will be updated shortly to include a new Parental Bereavement Leave Policy.
Minimum Wage Rates Increase from 1st April 2020
It has been announced that on the 1st April 2020 the minimum wage will increase by amounts ranging from 4.6% to 6.5%. The National Minimum Wage (NMW) is the minimum pay per hour that most employees are entitled to by law. An employee's age and if they are an apprentice will determine the rate they will receive.
These rates were recommended to the government by the Low Pay Commission, an independent body that advise on the national minimum wage and living wage. It is estimated that approximately three million workers will see pay increases due to the new rates being introduced. Employees aged 25 and over will see a rise of 51p from £8.21 to £8.72, which will result in an increase of £930 annually.
Please see the current rates and the new rates below:
| Rates from 1 April 2019 are | Rates from 1 April 2020 will be | |
| 25 yrs old and over | £8.21 per hour | £8.72 per hour |
| 21-24 yrs old | £7.70 per hour | £8.20 per hour |
| 18-20 yrs old | £6.15 per hour | £6.45 per hour |
| 16-17 yrs old | £4.35 per hour | £4.55 per hour |
| Apprentices under 19 or 19 or over who are in the first year of apprenticeship |
£3.90 per hour | £4.15 per hour |
It has also been recommended by the Low Pay Commission that the national living wage will be paid to employees aged 21 and over. The National Living Wage is an obligatory minimum wage currently paid to employees aged 25 and over that was introduced in April 2016. The government aims to achieve this recommendation by 2024.
Coming in 2020 - The Good Work Plan
The aim of this plan is to strengthen employment rights and improve working lives for employees in the UK. Changes to existing employment law are coming, while some entirely new entitlements are planned. There is a clear focus by Government now on improving communication and certainty in the working relationship.
We will be looking at this in more detail over the coming months but for now, some points for employers to take note of include:
- Currently, you have 2 months to provide the written particulars of employment to staff. From April 6th, this will change to a “day-one” right instead. This will ensure that both you and your employees (staff and workers) are clear about the main contractual terms from the start of employment. A comprehensive list of terms and conditions must be included in this contract.
- The ‘opt-out’ option for agency workers to receive a guaranteed level of pay between temporary assignments has been removed. They are to receive the same pay as permanent staff after working up 12 weeks service.
- In terms of holidays, the reference period used to calculate holiday pay will be extended from 12 to 52 weeks. This is positive for any of your staff working variable hours. The Government has plans to launch a new holiday entitlement calculator which we are sure will be welcomed by all to correctly determine employees’ holiday entitlement.
As employers, you will need to start planning now for how these changes will impact on you.
New Year, New HR You!
Start 2020 with some HR goals to put you on the front foot. Make your goals achievable and easy and you won’t be one of the 80% of people whose resolutions have fallen by the wayside by February 1st! Consider how technology could help you achieve a leaner you in 2020.
1. Cut out the fat…
Hate all those repetitive admin tasks that keep popping up over and over like manually recording your employees annual leave, amending employees’ personal details, making sure they are receiving and reading important company updates? Well, now is the time to get rid of them. Consider how an online platform could take care of those tasks and many more.
2. Get out and about more…
Manage your HR tasks from almost anywhere by using your Employer Dashboard to monitor your employees annual leave requests, review your payroll reports and keep an eye on your Revenue payments. As long as you have an internet enabled device, it can all be at your fingertips… anytime, anywhere!
3. Communicate better…
Use online document upload features to distribute, track and manage any information you want your staff to have access to. Contracts, policies, training, schedules, you name it. You have the peace of mind of knowing your employees have that information at their fingertips and that you can see a log of when and how often the are accessing it.
4. Face your fears….
GDPR and cyber security. The two scariest words in the English language. Free yourself from that fear with a robust online portal. Fully secure servers, individually password protected and fully GDPR compliant.
Good Work Plan
The Government’s Good Work Plan sets out their vision for the future of the UK labour market.
Whilst some of the initiatives are still at the planning and consultation stage, others have been giving legal effect.
On 6th April 2020 three new pieces of employment legislation will come into force.
- The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018
- The draft Employment Rights (Miscellaneous Amendments) Regulations 2019
- The draft Agency Workers (Amendment) Regulations 2018
Under the new legislation the following changes will be introduced:
- It will become a day one right to receive a written statement of terms and conditions (or contract of employment). The information to be included in the written statement has also been extended. This right will now include workers as well as employees.
- The holiday pay reference period will increase from 12 weeks to 52 weeks. This reform is intended to improve the holiday pay for seasonal workers, who tend to lose out over the way it is currently calculated.
- The Employment Rights (Miscellaneous Amendments) Regulations 2019 will increase the maximum fine an Employment Tribunal can impose on an employer from £5,000 to £20,000 where there has been an aggravated breach of workers’ rights.
- A loophole which allowed agency workers to be paid at a cheaper rate than permanent employees performing the same role will now be closed.
Data Protection complaints increase since GDPR
Nearly 5 months since the General data Protection Regulation (GDPR) was introduced across all of the European Union, complaints around Data Protection have nearly doubled in the UK according to the Information Commissioner’s Office (ICO)
GDPR was designed to give Data Subjects more control over their personal data, with more transparency and the threat of larger fines to those in breach of the new rules. The GDPR requires any company that suffers a data breach to notify its users/data subjects within 72 hours of the breach being discovered.
• Data protection complaints to the UK’s ICO rose to 4214 in July compared to just 2310 complaints received in May before the GDPR came into force. A spokes person for the ICO said the increase was expected, as more users became aware of data protection because of publicity around the new rules and following a series of high-profile data scandals involving some well-known household names, like Morrison’s and Dixons Carphone.
• In July the ICO reported that since May 25th, it had seen a four-fold increase in the number of breaches that organizations were self-reporting.
Experts note, however that the increase’s do not mean that the number of data breaches has suddenly gone up, but rather reflects the full scale of the data breach problem becoming better known.
Organisations that fail to comply with GDPR can face fines of up to 4% of annual global revenue or €20 million, whichever is greater. So far none of the EU’s Data Protection Agency’s have levied any fines. Multiple DPA’s told the International Association of Privacy Professionals Advisor Newsletter that it is simply too soon.
We will be hosting a free online webinar on ‘GDPR 5 Months On’ on Tuesday October 16th at 11am, where we will look at the implications of GDPR on payroll processing and how employer’s can be demonstrate compliance by following a few, simple steps.
To register for this webinar please click here.
