HOLIDAY PAY FOR FURLOUGHED EMPLOYEES
Employees who have been placed on furlough continue to accrue statutory holiday entitlements, and any additional holiday provided for under their employment contract. Use the government holiday entitlement calculator to calculate a worker’s statutory holiday entitlement.
- require employees to take holiday.
- cancel an employee’s holiday, if they give enough notice to the employee.
The required notice periods are:
- double the length of the holiday if the employer wishes to requires an employee to take holiday on particular days.
- the length of the planned holiday if the employer wishes to cancel an employee’s holiday or require the employee not to take holiday on particular dates.
Employers can ask employees to take or cancel holiday with less notice but need the employees’ agreement to do so.
These notice periods are in advance of the first day of the holiday, and the notice must be given before the notice period starts. For example, if an employer wanted to prevent an employee taking a week’s holiday, they would have to give notice earlier than 1 week before the first day of the holiday. For the purposes of calculating the notice period, any uninterrupted period of holiday counts as a single period. These rules on notice periods can be altered by a binding written agreement between the employer and the worker.
Employees on furlough can take holiday without disrupting their furlough. The notice requirements for their employer requiring an employee to take leave or to refuse a request for leave continue to apply. Employers should engage with their workforce and explain reasons for wanting them to take leave before requiring them to do so.
If an employer requires an employee to take holiday 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 resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday.
BANK HOLIDAYS FOR FURLOUGHED EMPLOYEES
Where a bank holiday falls inside 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, there are 2 options.
The bank holiday is taken as annual leave
If the employer and employee agree that the bank holiday can be taken as annual leave while on furlough, the employer must pay the correct holiday pay for the employee. Employers may also require workers to take the bank holiday as annual leave with the correct notice periods.
The bank holiday is deferred
If the employer and the employee agree that the bank holiday will not be taken as annual leave at that time, the employee must still receive the day of annual leave that they would have received. This holiday can be deferred till a later date, but the employee should still receive their full holiday entitlement.
Holiday pay, whether the employee is on furlough or not, should be calculated in line with current legislation, based on a worker’s usual earnings. The underlying principle is that a worker should not be financially worse off through taking holiday. Where a worker has regular hours and pay, their holiday pay would be calculated based on these hours. If they have variable hours or pay, their holiday pay is calculated as an average of the previous 52-weeks of remuneration excluding weeks in which there was no remuneration.
An employer should not automatically pay an employee on holiday the rate of pay that they are receiving while on furlough, unless the employer has agreed to not reduce the employee’s pay while on furlough.
If an employee on furlough takes annual leave, an employer must calculate and pay the correct holiday pay in accordance with current legislation. Where this calculated rate is above the pay the employee receives while on furlough, the employer must pay the difference. However, as taking holiday does not break the furlough period, the employer can continue to claim the 80% grant from the government to cover most of the cost of holiday pay.
CARRYING ANNUAL HOLIDAY PAY FORWARD
The 5.6 weeks of statutory holiday is split into 4 weeks and 1.6 weeks, and there are some differences in the rules that apply:
- the 1.6 weeks can be carried forward into the following leave year if a written agreement exists between the employee and the employer.
- generally, the 4 weeks cannot be carried into future leave years, so employers must facilitate these weeks being taken within the relevant leave year.
However under certain circumstances employers must allow the 4 weeks to be carried into future leave years. Where an employee cannot take annual leave due to them being on maternity leave or sick, employers must still allow employees to carry their annual leave forwards. These rights remain unaffected by an employee being furloughed.
Carrying leave forwards: how new legislation has changed the rules
The government has passed new emergency legislation to ensure businesses have the flexibility they need to respond to the coronavirus pandemic and to protect employees from losing their statutory holiday entitlement (The Working Time (Coronavirus) (Amendment) Regulations 2020, laid before Parliament on 27 March 2020). These regulations enable employees to carry holiday forward where the impact of coronavirus means that it has not been reasonably practicable to take it in the leave year to which it relates.
Where it has not been reasonably practicable for the employee to take some or all of the 4 weeks’ holiday due to the effects of coronavirus, the untaken amount may be carried forward into the following 2 leave years. When calculating how much holiday an employee can carry forward, employers must give employees the opportunity to take any leave that they cannot carry forward before the end of the leave year.
What is reasonably practicable?
When considering whether it was not reasonably practicable for an employee to take leave as a result of the coronavirus, so that they may carry untaken holiday into future leave years, an employer should consider various factors, such as:
- whether the business has faced a significant increase in demand due to coronavirus that would reasonably require the employee to continue to be at work and cannot be met through alternative practical measures.
- the extent to which the business’ workforce is disrupted by the coronavirus and the practical options available to the business to provide temporary cover of essential activities.
- the health of the employee and how soon they need to take a period of rest and relaxation.
- the length of time remaining in the employee’s leave year, to enable the employee to take holiday at a later date within the leave year
- the extent to which the employee taking leave would impact on wider society’s response to, and recovery from, the coronavirus situation.
- the ability of the remainder of the available workforce to provide cover for the employee going on leave.
Employers should do everything reasonably practicable to ensure that the employee is able to take as much of their leave as possible in the year to which it relates, and where leave is carried forward, it is best practice to give employees the opportunity to take holiday at the earliest practicable opportunity.
Employees who are on furlough are unlikely to need to carry forward statutory annual leave, as they will be able to take it during the furlough period (in most cases at least). However, to do so they must be paid the correct holiday pay which is likely to be higher than the rate of pay that will be covered by government grants, with the employer making up the difference.
If, due to the impact of coronavirus on operations, the employer is unable to fund the difference, it is likely that this would make it not reasonably practicable for the employee to take their leave, enabling the employee to carry their annual leave forward.
In this situation, the employee must still be given the opportunity to take their annual leave, at the correct holiday pay, before the carried annual leave is lost at the end of the next 2 leave years.
SUPPORT FOR BUSINESSES PAYING SICK PAY TO EMPLOYEES
Your employees may be eligible for Statutory Sick Pay (SSP), which is £95.85 a week for up to 28 weeks.
You can offer more if you have a company sick pay scheme (you cannot offer less). Company schemes are also called ‘contractual’ or ‘occupational’ sick pay and must be included in an employment contract.
IF YOUR EMPLOYEE IS OFF WORK BECAUSE OF COVID-19
You must pay an employee SSP if they are off work for at least 4 days because either:
- they have coronavirus symptoms.
- they are self-isolating because someone they live with has symptoms.
- they have a letter from the NHS or a GP telling them to stay at home for at least 12 weeks (called ‘shielding’).
You must pay them from the first day they are off work if the period of sickness started on or after:
- 13 March 2020 – if your employee has coronavirus symptoms or is self-isolating because someone they live with has symptoms.
- 16 April 2020 – if your employee is shielding.
You may be able to reclaim up to 2 weeks’ SSP you’ve paid to employees who cannot work because they have coronavirus or are self-isolating or shielding because of coronavirus.
HOLIDAY OR ANNUAL LEAVE WHILST OFF SICK
Statutory annual leave is accrued while the employee is off work sick (no matter how long they’re off) and can be taken during sick leave.
The weekly rate for Statutory Sick Pay (SSP) is £95.85 for up to 28 weeks. It is paid:
- for the days an employee normally works – called ‘qualifying days’
- in the same way as wages, for example on the normal payday, deducting tax and National insurance
Use the SSP calculator to work out the actual amount, for example for a daily rate.
You cannot force your employees to take annual leave when they’re eligible for sick leave.
WHEN TO START PAYING SSP
SSP is paid when the employee is sick for at least 4 days in a row (including non-working days).
You cannot count a day as a sick day if an employee has worked for a minute or more before they go home sick.
If an employee works a shift that ends the day after it started and becomes sick during the shift or after it has finished, the second day will count as a sick day.
IF YOUR EMPLOYEE IS OFF SICK OR SELF-ISOLATING BECAUSE OF COVID-19
From 13 March 2020 you start paying SSP from the first ‘qualifying day’ an employee is off work, as long as they are off for at least 4 days in a row.
If an employee was off sick with coronavirus symptoms before 13 March, you start paying SSP from the fourth qualifying day.
Employees who were self-isolating before 13 March because someone they live with had symptoms only qualify for SSP from 13 March.
IF YOUR EMPLOPEE IS ‘SHIELDING’ BECAUSE OF COVID-19
From 16 April 2020, you start paying SSP from the first qualifying day an employee is off work. You do not pay SSP for any shielding that took place before 16 April 2020.
IF YOUR EMPLOYEE IS OFF SICK FOR ANOTHER REASON
You start paying SSP from the fourth qualifying day.
You do not usually pay SSP for the first 3 days (‘waiting days’) unless the employee has been off sick and getting SSP within the last 8 weeks.
WHEN TO STOP PAYING SSP
SSP stops when the employee comes back to work or no longer qualifies.
You’ll need to keep records of SSP you’ve paid to an employee who was off work because of coronavirus if you want to reclaim it.
You’ll need to keep the following records for 3 years after the end of the tax year you paid SSP:
- the dates the employee was off sick.
- which of those dates were qualifying days.
- the reason they said they were off work – if they had symptoms, someone they lived with had symptoms or they were shielding.
- the employee’s National Insurance number.
You do not need to keep records of SSP paid to employees who are off sick for another reason.
You can choose how you keep records of your employees’ sickness absence. HMRC may need to see these records if there’s a dispute over payment of SSP.
ELIGIBILITY AND FORM SSP1
To qualify for Statutory Sick Pay (SSP) employees must:
- have an employment contract.
- have done some work under their contract.
- have been sick for 4 or more days in a row (including non-working days) – known as a ‘period of incapacity for work’.
- earn an average of at least £120 per week.
- give you the correct notice.
- give you proof of their illness, only after 7 days off.
Employees who have been paid less than 8 weeks of earnings still qualify for SSP. Use the sick pay calculator to work out how much to pay them.
An employee’s period of incapacity for work is not interrupted if they take annual leave during that time.
Employees can qualify for sick pay from more than one job.
They could also qualify in one job but be fit for work in another, for example if one job is physical work that they cannot do while ill but the other is office-based.
Your employees qualify for SSP if they meet the criteria above and cannot work because they either:
- started self-isolating on or after 13 March 2020 because someone they live with has coronavirus.
- have been shielding since 16 April 2020.
They do not qualify if they have been put ‘on furlough’.
Employees do not qualify for SSP if they:
- have received the maximum amount of SSP (28 weeks).
- are getting Statutory Maternity Pay or Maternity Allowance – there are special rules for pregnant women and new mothers who do not get these payments.
- are off work for a pregnancy-related illness in the 4 weeks before the week (Sunday to Saturday) that their baby is due.
- were in custody or on strike on the first day of sickness (including any linked periods).
- are working outside the EU and you’re not liable for their National Insurance contributions.
- received Employment and Support Allowance within 12 weeks of starting or returning to work for you.
LINKED PERIODS OF SICKNESS
If your employee has regular periods of sickness, they may count as ‘linked’. To be linked, the periods must:
- last 4 or more days each.
- be 8 weeks or less apart.
Your employee is no longer eligible for SSP if they have a continuous series of linked periods that lasts more than 3 years.
IF AN EMPLOYEE IS NOT ELIGIBLE OR THEIR SSP ENDS
If your employee’s SSP is ending you must send them form SSP1 either:
- within 7 days of their SSP ending, if it ends unexpectedly while they’re still sick.
- on or before the beginning of the 23rd week, if their SSP is expected to end before their sickness does.
If your employee does not qualify for SSP you must send them form SSP1 within 7 days of them going off sick.
If your employee thinks this is unfair, they can appeal to HMRC – the form tells them how to do this.
You can complete form SSP1 before the end of SSP if you know an employee will be off sick for more than 28 weeks. This means they can apply for ESA before their SSP comes to an end.
NOTICE AND FIT NOTES
The employee should tell you they’re sick within the time limit set by you, or 7 days if you do not have one. You cannot:
- insist they tell you in person or on a special form.
- ask them for proof of their sickness until they have been off for 7 days (including non-working days).
You do not have to pay Statutory Sick Pay (SSP) for any days the employee was late in telling you (unless there’s a good reason for the delay).
An employee is sick from Monday 6 June. They usually work from Monday to Friday.
You’ve set your time limit at 5 days’ notice, but they only tell you they’re sick after 7 days (on Monday 13 June).
You do not have to pay them SSP for the 2 days they were late telling you.
You start paying SSP on Thursday 16 June – on the fourth ‘qualifying day’ (days an employee usually works on) after they told you they were sick.
IF AN EMPLOYEE IS SHIELDING BECAUSE OF COVID-19
The time limit for an employee to tell you they are shielding depends on when they got their letter from the NHS or a GP telling them to stay at home for at least 12 weeks.
If your employee got their letter before 16 April, they should tell you they’re shielding by 23 April 2020.
If they got the letter on or after 16 April, they should tell you within the time limit set by you (or within 7 days if you have not set one).
FIT NOTES & ASKING FOR PROOF
After 7 days off sick (including non-working days) you can ask the employee for proof of their sickness. This could be:
- an isolation note from NHS 111 – if they are self-isolating and cannot work because of COVID-19.
- a fit note from their doctor or a hospital (sometimes called a sick note) – if they have any other illness.
- the NHS or GP letter telling them to stay at home for at least 12 weeks because they’re at high risk of severe illness from COVID-19.
If you agree, they can give you a report from a physiotherapist, podiatrist or occupational therapist, (called an Allied Health Professional (AHP) Health and Work report).
You cannot withhold SSP if the employee is late sending you a fit note or isolation note.
If your employee is off sick frequently or for a long time, HMRC has information about getting medical advice.
To find out about more UK & Scottish Government SME support click HERE.