Coronavirus Update: Carry over of statutory leave and holiday during Furlough
In light of the Coronavirus outbreak, the Working Time Regulations have been amended to entitle workers to carry over 4 weeks of their 5.6 week statutory holiday entitlement into the next two holiday years immediately following the holiday year in which it was due, if they were unable to take holiday due to ‘the effects of Coronavirus’. This will hopefully help alleviate the pressure on businesses facing the prospect of large numbers of workers requesting to use their statutory holiday entitlement towards the end of the leave year, once they have returned to the workplace. Although, the amendments do not appear to give employers the right to insist on carry-over.
Under the Working Time Regulations, a worker is entitled to 5.6 weeks’ statutory annual leave each year: normally, they must take 4 of these weeks in the relevant leave year (other than in some cases involving sickness or maternity leave).The aim is to ensure that workers can take regular breaks from their work commitments and get much needed rest and relaxation.
However, in light of the Coronavirus pandemic an amendment to this rule has been made to ensure that those who may be prevented from taking their holiday during this time, do not lose out on their entitlement.
The position in relation to the 1.6 weeks additional statutory leave entitlement remains the same – it may be carried forward into the next holiday year if the worker’s contract allows for this.
Carry over of holidays
The Working Time Regulations have been amended to entitle workers to carry over up to 4 weeks of their 5.6 week statutory holiday entitlement into the next two holiday years immediately following the holiday year in which it was due. This applies if it was not ‘reasonably practicable’ for them to take the holiday because of ‘the effects of Coronavirus’.
The ‘effects of Coronavirus’ include effects on workers, employers, as well as the wider economy or society more generally.
In relation to what would be ‘reasonably practicable’, Government guidance sets our various factors to consider, such as:
- whether your business has faced a significant increase in demand due to coronavirus that would reasonably require the worker to continue to be at work and cannot be met through you taking alternative practical measures;
- the extent to which your workforce is disrupted by coronavirus and the practical options available to you to provide temporary cover of essential activities;
- the health of the worker and how soon they need to take a period of rest and relaxation;
- the length of time remaining in the worker’s leave year, to enable the worker to take holiday at a later date within the leave year;
- the extent to which the worker taking leave would impact on wider society’s response to, and recovery from, the coronavirus situation;
- the ability of the remainder of your available workforce to provide cover for the worker going on leave.
In addition, guidance issued by ACAS provides the following examples of scenarios where in their view, a worker would be unable to take holiday due to Coronavirus:
- where the worker is self-isolating or is too sick to take holiday before the end of their leave year;
- or where a worker has had to continue working and could not take paid holiday.
Where the worker’s reason for not taking their holiday is unrelated to Coronavirus, then the new carry over rules wouldn’t apply and the worker would need to use 4 weeks of their statutory holiday in the year it was due, as normal.
Payments made in lieu of accrued and untaken holiday
On termination a worker has a right to pay in lieu of accrued and untaken statutory holiday from the holiday year in which the employment terminates. Such payments must now also include any part of the 4 weeks statutory leave which the worker has carried over under the new rules.
Refusal of holiday
The amendments also state that an employer must have a ‘good reason’ for not allowing a worker to take this carried over leave on particular days. Normally the Working Time Regulations allow employers to prevent workers from taking leave by giving notice of at least as many days as the leave that is being refused. What constitutes a ‘good reason’ is not defined.
Annual Leave & Furlough leave
Workers can take holiday whilst on furlough, without breaking the furlough period. However, the position is less clear when it comes to whether employers can require workers to take holidays during furlough leave.
The latest Government guidance suggests that you can require workers to take annual leave while furloughed, provided you give the required period of notice under the Working Time Regulations. However, the guidance also notes that employer should “consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday.” So, there is some ambiguity as to whether holiday during furlough affords sufficient rest for workers and we anticipate this to be an area of future legal challenge.
Please contact your usual Brodies contact if you have any queries in relation to carry over of holiday, or Coronavirus more generally.
Our dedicated Workbox Coronavirus pages are currently free to view for everyone.
Workbox users can also access detailed information, templates and policies on holidays here.
This blog was originally published on 8 April 2020 and updated on 12 June 2020.
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