Clarification on temporary changes to holiday entitlement
Given the government’s recent announcement in respect of the provision to carry forward holiday to the next 2 holiday years there seems to be some confusion or misunderstanding as to what this actually means. The Working Time (Coronavirus) (Amendment) Regulations 2020 amends the Working Time Regulations 1998 to create a further exemption relating specifically to COVID-19. Where it is not reasonably practicable for a worker to take some, or all, of the holiday to which they are entitled due to the coronavirus, they have a right to carry the 4 weeks under regulation 13 into the next 2 leave years.
Under the WTR, workers are entitled to 5.6 weeks’ paid annual leave per year (pro-rated for part time employees). This is made up of 4 weeks required under European law (Basic Leave), and an additional 1.6 weeks permitted under domestic legislation (Additional Leave). This entitlement includes bank holidays and is prorated in the year of joining. Some employees are entitled to more holiday under their contract of employment.
The WTR provides that workers must use their 4 weeks’ Basic Leave entitlement in the leave year in which it is due, otherwise the entitlement will be lost.
The government’s latest announcement applies to the 4 weeks’ Basic Leave. The government will amend the WTR so as to allow workers to carry-over up to 4 weeks’ holiday into the next two holiday years. This provision will apply where at the end of the year it has not been “reasonably practicable” for a worker to take some or all of this leave as a result of the effects of Coronavirus. Holiday in this case means taking a break from work and not the ability to use that time in any particular way i.e. travelling as opposed to staying at home.
The legislation previously prevented employers from allowing employees to carry forward unused basic statutory holiday entitlement to the next year. Whilst the relaxation in the law is intended to enable employers to allow the carry forward for key essential workers to ensure they can continue the important work in hospitals, supermarkets or keep supplies flowing without losing the crucial time off they are entitled to it does apply to everyone. The “not reasonably practicable” requirement means that coronavirus will need to have had a genuine impact on the individual worker’s ability to take their leave for the carry over to apply, so this should not be used as a carte blanche by all employers to refuse or cancel holiday requests for the foreseeable future particularly if they are not significantly affected by the pandemic. The new rules do not make it an employee’s right to carry forward unused holiday but a relaxation in the law to enable employers to ensure key workers do not lose the essential time off which they have been unable to take due to the coronavirus outbreak or prevent the employer having a significant number of employees amassing holiday to take at a later date unless this is absolutely necessary.
The interplay between holiday and furlough leave under the government’s Job Retention Scheme is not clear. The Government guidance on the Coronavirus Job Retention Scheme confirms that employment rights still accrue whilst on furlough therefore we take this to mean that holiday will therefore continue to accrue however clarification is still awaited on this point.
