COVID-19: Updated Guidance on Holiday RightsEmployment Law Advice
The Department for Business, Energy and Industrial Strategy has published full guidance on workers’ entitlement to holiday and holiday pay during the Coronavirus crisis.
Carrying Forward Leave
The Working Time (Coronavirus) (Amendment) Regulations 2020 enable workers to carry holiday forward into the following 2 leave years where the impact of covid-19 means that it has not been reasonably practicable to take it in the leave year to which it relates. This applies to the 4 weeks’ statutory annual leave provided by the Working Time Regulations.
The guidance states that when considering whether it was not reasonably practicable for a worker to take leave as a result of the Coronavirus, the employer should consider the following factors:
- Whether the business has faced a significant increase in demand due to covid-19 which required the worker to continue to be at work;
- The extent of the disruption to the workforce and any practical options available to the business to provide temporary cover;
- 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 (i.e. whether the worker could take holiday at a later date within the leave year);
- The likely impact on wider society’s response to, and recovery of coronavirus, if the worker took the leave; and
- The ability of the remainder of the workforce to provide cover for the worker going on leave.
Examples of what may be reasonably practicable are set out in the guidance.
Ultimately, the decision regarding carrying forward holiday is at the employer’s discretion. An employer’s ability to require a worker to take annual leave is unaffected by the ability to carry holiday forward.
The guidance provides that employers should do everything reasonably practicable to ensure that the worker is able to take as much of their leave as possible in the year to which it relates. Where leave is carried forward, the employer must ensure that the worker is given the opportunity to take holiday at the earliest practicable opportunity.
The guidance has confirmed the position that workers who are furloughed are unlikely to need to carry forward statutory annual leave as they will be able to take it during the furlough period.
Employers are therefore able to require furloughed workers to take annual leave during the furloughed period. Employers must give twice the number of days notice that they want the worker to take as holiday. I.e. an employer must give two weeks’ notice to require the furloughed worker to take one week’s annual leave.
Before compelling the employee to take annual leave, employers must take into account whether there are any restrictions which prevent the worker from resting, relaxing and enjoying leisure time (being the fundamental purpose of holiday), due to the need to socially distance or self-isolate.
For further information on holiday and holiday pay, please read the full guidance.