… against an employer.

I just want to know if I’m about to get my wife fired or not.   During furlough, their been some questions regarding whether her company is allowed to remove 50% of her annual leave entitlement, which they want to do & have done to other employees.   She only receives statutory entitlement, and a pro-rata of that to 16.8 days as a 3 day a week worker.

This says she’s entitled to 16.8 days – https://www.gov.uk/guidance/holiday-entitlement-and-pay-during-coronavirus-covid-19 regardless of the fact she’s on furlough.

She’s taken 2 in Feb, has 10 booked for August to cover our now cancelled holiday but also of course kids being off school – they are telling her to remove it and take the time unpaid.

I’ve helped her write a factual email pointing to that source and stating its a legal entitlement which should be recognised and the fact that the constant justification process is causing her some angst.  We haven’t sent it yet.  Am I doing the right thing?

Am I doing the right thing?

I’d say that yes, you are absolutely doing the right thing.

One of the first things that my employer instructed everyone to do when the lock down happened was to cancel their booked annual leave days to save them for later in the year if required.

I was supposed to be off for a week at Easter but I cancelled that and still have those days. I wasn’t furloughed though and have been working from home all the way through.

Well it sounds as though your wife’s doing the right thing.

One does not have a legal entitlement to choose when to take your holiday, providing the employer gives you reasonable notice they can determine when you take your statutory holiday entitlement. Therefore I would rely on rasonableness rather than suggesting you have legal rights.

I think furlough is different and you can’t be force to have leave during this period.

Hold fire before sending it. These things are best done calmly

I’ll do some research and write a answer later

TJ, thats appreciated, thank you.

I seem to remember your wife was still working (not furloughed) is that correct?

Did you also get her to join a union as I suggested? Depending on the union, this would give her free legal advice from the unions solicitors.

If so, they cannot remove holiday entitlement that forms her T&Cs.

From the latest Q&A I have received from my union (I am a Rep), Holiday entitlement continues to accrue during furlough regardless. (I believe they can make you use some annual leave if they are topping up your pay to 100%)

Your wife’s Company can make her take holiday whenever they wish (so during furlough, if she is) however they shall (<- legal definition) give double the time of leave as notice, eg if they want you to take a week off, they need to give you 2 weeks notice. Therefore they cannot do this retrospectively.

Furlough is not leave and you cannot be asked to take leave whilst furloughed.

I am not clear as to whether or not you accrue leave when on furlough but I think you do. Even if you don’t 3 months furlough would result in 1/4 of holiday entitlement lost. Also if holiday is the statutory minimum then the bank holidays not taken during furlough cannot be removed from calculated annual leave. If entitlement is more than statutory minimum then may have to allow some give and take but it depends on what the contract says (if there is one).

As said above it’s often better to talk to a line manager first to feed up the tree of if a small firm all need to agree and present a united front to the manager.

Final comment: join a Union. A word from a rep often gets stuff sorted without fuss where managers were arguing black was white with individuals. Just join up. If more than half of you do they have to formally recognise your stake in the business.

(I believe they can make you use some annual leave if they are topping up your pay to 100%)

Any source for that? I’m on 80% and have been requested to book holidays this month.

FutureBoy – see the Taking Holiday section in my link in the OP:

Employers can:

• require workers to take holiday
• cancel a worker’s holiday, if they give enough notice to the worker

The required notice periods are:

• double the length of the holiday if the employer wishes to require a worker to take holiday on particular days
• the length of the planned holiday if the employer wishes to cancel a worker’s holiday or require the worker not to take holiday on particular dates

Employers can ask workers to take or cancel holiday with less notice but need the workers’ agreement to do so.

@Kryton57 cheers. I get that they are within rights to request holidays be taken. It was the topping up to 100% comment I was curious about.

Any source for that?

Just found it, but I was slightly wrong I’m afraid (My Mum was asking about it…) that was if you are isolating due to Doctors Letter and not furloughed. My mistake.

Just bear in mind, that if you book any holiday during furlough (with the appropriate notice from the company) this is taken from your AL entitlement and therefore is 100% pay.

Just for clarity, are they looking to reduce the total number of holiday days that she’s entitled to in the year rather than dictating when she can take her full allowance?

That’s my reading of it. It’s not when, it’s how many.

One of the first things that my employer instructed everyone to do when the lock down happened was to cancel their booked annual leave days to save them for later in the year if required.

One of the first things my employer did was to encourage people to take any time already booked, and indeed book time off as normal, as they didn’t want a massive bow-wave of holiday requests building up for later in the year. This is all non-furloughed, ‘enforced’ working from home, types though.

Just for clarity, are they looking to reduce the total number of holiday days that she’s entitled to in the year rather than dictating when she can take her full allowance?

That’s my reading of it. It’s not when, it’s how many.

Yes.  She has 14.8 days left in her leave balance today.  They are telling her to return from furlough with only 4.8 remaining, having not taken any during furlough.

My concern is, that if we send that email she’ll be earmarked as “difficult” and potentially fired, or that they tell her to take 10 days leave now / July to ensure she doesn’t’ have it available in August.

Whatever happens, we need to cover those August dates as we don’t have childcare otherwise.

Kryton, from all the info i have been sent from my lot, it appears they cannot do that as holiday accrues as normal (therefore pro rata in her case).

Is there a friendly union rep (of any union) in her work place she can have a word with off the record and ask them their advice/to look into it? If its being expected of her, then it will be expected of others who may be members.

Some more info here:

https://www.citizensadvice.org.uk/work/rights-at-work/holidays-and-holiday-pay1/taking-your-paid-holiday/

https://www.acas.org.uk/coronavirus/using-holiday

Also it seems her employer is ‘enforcing’ the holiday retrospectively which seems highly dubious

I think the point remaining is she’d be left with an leave entitlement of 6.8 days across the year, which is below the minimum legal requirement.

I’d suggest that tone is very important here. If you go in all guns blazing from the outset, quoting section 41 subsection 3 paragraph ii of some law or act or other to her place of work it might well not be positively received, which I’m sure you’re aware of otherwise this thread wouldn’t exist. Rather, pitch it as though you’re doing them a favour by highlighting something they might not be aware of (and these are atypical times, they might actually not know, Hanlon’s Razor and all that).

Alternatively, there’s many, many ways of getting anonymous email addresses…

As you have said regarding a worry of lose of employment, you’re best bet for an initial email (written record) is a request of information on why they are asking her to do this, and what they believe allows them to do so.

Best case is the company realise they cannot do this and rescind the request, worst case is you get some BS words that mean absolutely nothing and gives you more evidence if it does turn into a dispute.

Yes indeed.  She sent it, after we softened it together.

The email came as a reply we’d sent before when they had an open Teams meeting about it, within which they were ask to feel free to check the guidance / it wasn’t as robust as it is now.   Some weeks ago, she replied and said “About this loss of holiday, here’s a link to CIPD…”

This then is off the back of a reply from her manager, who is saying he spoke to HR and the company view is that she should be deducted 10 days.  Thats was last Thursday.

So now we’ve replied that “Thats not whats the guidance says, here’s a link to Gov.UK, and I really need that holiday to cover children off school”.   Its worth remembering she’s been encouraged in the past by her manager to do her research.

As you have said regarding a worry of lose of employment, you’re best bet for an initial email (written record) is a request of information on why they are asking her to do this, and what they believe allows them to do so.

Definitely the next step.

I have to say some of you work for some real shitty companies!
Sure I have a few gripes now and again about our huge corporate system but I have to say over the last 21 years they have looked after their employees.

Its difficult Kryton. I get that causing issues now means she’ll be more likely towards the top of the list for the next round of ‘there’s the door’  however I am a FERVENT trade unionist and companies cannot be allowed to get away with flouting the rules. If they get away with it once, they’ll keep doing it.

Everything I have seen from my Union, which is all checked by their legal department before sending to the millions of members, says they cannot do this. I seem to remember MrsK works for a smallish company (which is where I believe the vast majority of these problems occur)

The thing is, if she doesn’t stand up for herself, there are others who will be effected in the same way as well as her. This is the nature of unionism, stronger together, to make sure things are done correctly and fairly.

The fact that the company is attempting this tells me their HR dept. may not be as good as they think.

Furlough is not leave and you cannot be asked to take leave whilst furloughed.

There seems to be some guidance up at http://www.gov.uk/guidance/holiday-entitlement-and-pay-during-coronavirus-covid-19, under the taking holiday section is does say that employers can require you to take holiday (as I have been) but also that the rule changes allow you to carry over unused leave).

Kryton57 – are you sure that Mrs K’s employer isn’t just making a hash of instructing her to take leave whilst furloughed?

If my understanding is correct, that would be legal and have the same affect. Obviously you don’t want to give them a free pass with that, but I’d make sure that that wasn’t what was being requested.

Its difficult Kryton. I get that causing issues now means she’ll be more likely towards the top of the list for the next round of ‘there’s the door’  however I am a FERVENT trade unionist and companies cannot be allowed to get away with flouting the rules. If they get away with it once, they’ll keep doing it.

I was having these thoughts during a Turbo session last night.   I started with thinking that we’d done the wrong thing, but I ended with the point that why should she be bullied into a waiver of her legal rights?

As it happens she’d be happy to leave anyway, but I suspect the company would be more nervous – they are a large well known corporate – that she’s not the only one they’ve treated like this, and exposure via media would not be pleasant for them.   In my mind its incumbent upon them now to tell her it’ll stay as is on the basis she’s the exception and doesn’t mention it again.   Or they continue to bully her and risk a tribunal in which cases more cases and a fine from HMRC will be exposed.

are you sure that Mrs K’s employer isn’t just making a hash of instructing her to take leave whilst furloughed?

They might be – and if she’s furloughed until end of August or later the problem goes away anyway.   But her manager explicitly asked her to understand her rights on Furlough before she accepted she would take it, which she’s done and they appear now to be challenging.    She’s sent them the links to Gov.Uk it should be difficult, I’m amazed a corporate and global HR appears to have this so wrong.

As it happens she’d be happy to leave anyway, but I suspect the company would be more nervous – they are a large well known corporate – that she’s not the only one they’ve treated like this, and exposure via media would not be pleasant for them.

Presumably they will be very grumpy when your wife takes them to a tribunal for indirect sexual discrimination and constructive dismissal.

Maintenance killed my reply!

but I ended with the point that why should she be bullied into a waiver of her legal rights?

As far as I am concerned, this is the most important point. And once it happens once, companies believe they can get away with it again.

In my mind its incumbent upon them now to tell her it’ll stay as is on the basis she’s the exception and doesn’t mention it again

This could be a bit dangerous “one rule for some, one for the rest” ala Mr Cummingstain and can cause issues in future.

under the taking holiday section is does say that employers can require you to take holiday

If this is what they are actually trying to do and making a hash of it, then it cannot be mandated due to notice periods and would need to be by mutual consent, paid at 100% for those annual leave days.