Covid-19 – Employment Law Update – 9 April 2020

Holiday paid in full by employer if taken during furlough

Acas has updated its guidance concerning when an employee furloughed under the Government Job Retention Scheme (JRS) should receive holiday pay.  Acas guidance states, “Employees and workers must get their usual pay in full, for any holidays they take,” in a document providing advice to employers and employees. Given HMRC’s guidance document for employers on the JRS is silent on the issue, the position is not yet definitive.

Carrying over holiday

Acas’ updated guidance sets out its position in respect to the amendments to the Working Time Regulations 1998 on what is meant when it is not “reasonably practicable for a worker to take some or all of their holiday leave”.  Workers can carry forward holiday for up to two leave years under new special temporary legislation.  The Acas guidance explains “not reasonably practicable” as: ‘The employee may need to carry over holiday if they’ve been ‘furloughed’ and they cannot take paid holiday because of coronavirus.’  The guidance acknowledges the possibility that being on furlough may be grounds for carrying over holiday, but appears to treat that scenario as more of a possibility than a certainty.  We advise employers that such situations should be assessed on a case by case basis which our employment team can assist you with.

Previously booked holidays

The Acas guidance addresses the situation where a worker seeks to cancel annual leave that they have already arranged to take with their employer.  The guidance acknowledges that the Working Time Regulations 1998 allow the employer to insist that the worker takes the annual leave previously booked anyway, even if it is during a period of furlough (see the section titled “requiring staff to take holiday”), but suggests that, despite the employer’s right to insist, ‘it’s best practice to get agreement from the employee.’.

Acas encourages flexibility around holiday

The Acas guidance encourages both employers and workers to ‘be as flexible as they can about holiday during the coronavirus pandemic’. Acas says it’s a good idea to discuss why holiday might need to be taken or cancelled, invite and suggest ideas for alternatives, consider everyone’s physical and mental wellbeing and be aware that it’s a difficult time for both employers and staff.

Sector guidance on social distancing

The Government has published sector by sector guidance on social distancing in the workplace during the Covid-19 pandemic with helpful illustrative examples.  Sectors covered include logistics, construction, trades, manufacturing and processing, retails, transport and shops and delivery services.

HMRC concerns regarding fraud and the Coronavirus Job Retention Schemes

HMRC’s Chief Executive Jim Harra told a committee of MPs that he expected the CRJS to be targeted by fraudsters.  Harra told MP’s that fraud safeguards include the requirement that an employer is already authenticated by HMRC and processing checks to flag high-risk claims.

International Labour Organisation forecasts hardships for one billion workers

According to a new report by the International Labour Organisation as many as 1.25 billion workers working in high risk sectors face layoffs and reductions in wages and working hours.

New data on the effects of the Coronavirus on the construction industry

HIS Markit reports that in March, work in the construction industry declined at the fastest rate since the financial crisis.  The data suggests civil engineering and commercial work saw the biggest declines in activity. Whilst residential work declined less, housebuilders reportedly expect work to decline as the property market stalls.