Carry-over allowed for two years
Emergency amendments have been made to the Working Time Regulations 1998 (WTR) to allow workers who have not been able to take all their holiday due to coronavirus to carry it over into two subsequent leave years. Under normal circumstances, carry over is not allowed (although case law has established that carry over is permitted in certain circumstances, for example where the worker has been unable to take holiday due to illness).
The Working Time (Coronavirus) (Amendment) Regulations 2020 amend the WTR and provide that leave may be carried over in any leave year where it was not "reasonably practicable" for a worker to take some or all of their leave under regulation 13 (the 4 weeks of leave they are entitled to under WTR). In order for leave to be carried over, it must not be reasonably practicable for the worker to take the leave "as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society)". It is not clear how this will be interpreted.
Why was the amendment made?
It seems as if this amendment has been made primarily to avoid a situation where, come the end of lockdown, workers suddenly rush to take holiday all at the same time. Such a situation would hamper economic recovery if businesses that had lain dormant for so long did not then have working staff the moment they sought to resume economic activity. However, it must also be remembered that holiday is a health and safety measure designed to benefit workers so the amendment was also probably made with this in mind.
What is meant by 'not reasonably practicable'?
The amendment only allows for carry-over where it was not "reasonably practicable" to take it as a result of coronavirus and it remains to be seen how this will be interpreted. What factors should the employer consider when deciding whether carry over should be allowed (on the basis that it was not reasonably practicable to take leave)? We think employers should be fairly flexible in their approach given that the regulation contemplates the effects of coronavirus on the worker, the employer and wider society.
Acas has produced some brief guidance on taking holidays during coronavirus. It states that the new law on carry-over applies for any holiday the employee does not take because of coronavirus, for example if:
- they are self-isolating or too sick to take holiday before the end of their leave year
- they have had to continue working and could not take paid holiday.
Managing the issue in advance
In some businesses employers will specify that employees cannot take holiday during a period of lockdown, in others it may require them to do so. How much leave employees have left (and so potentially to carry over) will depend on the approach the employer has taken to leave during lockdown, and the willingness or otherwise of staff to take leave during that period.
The best way for employers to avoid disputes about carry-over further down the line is to consciously decide how much leave they would like employees to take or not take during lockdown, and to communicate this to staff. Ideally, the needs of the business and staff should be taken into account. Under the WTR employees may be required to take leave on particular dates if the correct notice is given by the employer.
Employers rarely get into disputes with employees about the timing of their annual leave but it may be that we see a spike in holiday-related grievances with the employer utilising its power under the WTR to require employees not to take leave at certain times or to take leave at certain periods.
