Coronavirus – Carrying Forward Annual Leave
3 weeks ago
With the world being locked down and nowhere to go, many workers are not using up their annual leave entitlement. What happens if a worker does not use up all of their statutory annual leave entitlement?
Rules before Covid-19
All workers, except for the self-employed, are legally entitled to 5.6 weeks statutory holiday entitlement a year. When it comes to calculating what unused holiday entitlement can be carried forward, these 5.6 weeks are split into 1.6 weeks and 4 weeks. Before the pandemic workers were allowed to carry 1.6 weeks holiday into the following year if there has been a written agreement with their employer, but they could not carry the other 4 weeks forward.
For many workers it has been unrealistic to use up all their holiday entitlement this year. Those people may have been understandably worried about losing their statutory holiday entitlement as a result of COVID-19. However, The Working Time (Coronavirus) (Amendment) Regulations 2020 has changed the normal rule to allow workers to carry any unused holiday into the next two years.
The requirement to carry unused holiday entitlement forward is: whether it has not been “reasonably practicable” for the worker to take some or all of their holiday due to the effects of coronavirus.
The meaning of reasonably practicable
For an employer, deciding what is ‘reasonably practicable’ may seem unclear, but the Government has produced guidance to clarify what should take into consideration. The Government guidance lists factors such as:
- “Whether the 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 alternative practical measures
- The extent to which the business’ workforce is disrupted by the coronavirus and the practical options available to the business 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 in the 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 the available workforce to provide cover for the worker going on leave”
Employers should note that they are required to do everything reasonably practicable to allow a worker to take their statutory leave within the current leave year. Employers cannot force an employee to carry their annual leave forward if taking their leave would been unaffected by the coronavirus pandemic.
Furlough and annual leave
What does the new regulation mean for the many workers who have been furloughed and are unable to work at all? The Government guidance states that it will most likely be ‘reasonably practicable’ for furlough workers to take their annual leave within their normal leave year. Due to the nature of the furlough scheme, it is expected that workers will be able to take their annual leave while furloughed and not need to carry it forward.
Nevertheless, a furloughed worker must be paid the same holiday pay as normal and if this is more than what an employer can claim under the Government furlough scheme, the employer must pay the difference. If the employer is unable to pay the difference, then it would not be ‘reasonably practicable’ for the furloughed worker to take their leave. In this scenario, a furloughed worker will also be able to carry their annual leave forward into the next two years.
If you have any concerns about your annual leave entitlement during COVID-19, please get in contact with us on 01334 654 081 and we will be happy to help.