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.

Background

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.

Coronavirus amendments

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. The Government have provided various factors to consider when determining what is '"reasonably practicable" in their guidance.  

Guidance issued by ACAS also 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

In relation to holidays and furlough leave, workers can take holiday while on furlough, without breaking the furlough period. 

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 employers can, provided they give the required period of notice under the Working Time Regulations. However, it also notes that employers 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.”

Please contact your usual Brodies contact if you have any queries in relation to carry over of holiday, or Coronavirus more generally.

You can find more information on furlough and the Coronavirus Job Retention Scheme on our dedicated Workbox Coronavirus FAQ pages, which are currently available to all.

Workbox users can also access detailed information, templates and policies on holidays here.