How much annual leave do your workers have left to take?
The end of the year is rapidly approaching and it is important to review any annual leave that your workers may still have remaining. In particular, if your holiday year ends on 31 December. The rules surrounding annual leave carry over have been relaxed due to the COVID-19 pandemic. Please see our previous blogs on 27 March 2020 and 19 May 2020,
In short, it remains the employer’s discretion to decide whether holiday can be carrying forward holiday, and employers can still compel workers to take their annual leave.
Here is a quick recap of the Government guidance and the rules surrounding carry over of annual leave into future leave years in light of COVID-19:
1. General rule on carry over of annual leave: this is not usually permitted (and will simply be lost) unless it cannot be taken due to being on maternity leave, sick leave or it is agreed expressly in the contact.
2. Why emergency legislation was introduced: this was passed to allow businesses flexibility to respond to the pandemic and allow workers to continue working without losing out on their annual leave. This will benefit businesses that may be short staffed due to the virus or need their full workforce to help keep the business running.
3. Impact of the legislation: annual leave can now be carried forward where the impact of COVID-19 means it has not been reasonably practicable to take it in the leave year to which it relates.
4. What is reasonably practicable? Employers must to do everything reasonably practicable to ensure the worker can take as much of their leave as possible. When considering it is not reasonably practicable for a worker to take leave as a result of COVID-19, the Guidance sets out full details and examples of what the business should consider, including the following factors:
- Has the business has faced a significant increase in demand due to COVID-19 requiring the worker to continue attending work?
- To what extent will the workforce be disrupted? Can temporary cover be provided?
- How soon does the worker need to take a period of rest and relaxation, considering their health?
- How much is leave does the worker have left to take in the leave year? Is there time for them to take it at a later date?
- If leave was taken, what likely impact will this have on the wider society’s response to, and recovery of COVID-19?
- Does the remaining workforce have the ability to provide cover to allow the worker to go on leave?
5. Amount of leave that can be carried over: up to 4 weeks (statutory annual leave) of untaken holiday can be carried into the following 2 leave years, if it has not been reasonably practicable to take the leave. This reflects the 4 weeks statutory annual leave only. If leave is carried forward, the worker should be given the earliest practicable opportunity to take their holiday
6. Furloughed workers: they continue to accrue holiday leave. Annual leave can be taken during furlough leave. Please note that pay will need to be topped up to 100% to reflect the workers usual pay
7. Notice required to compel a worker to annual leave: twice the number of days in notice as the amount of leave they require the worker to take. i.e. one week’s holiday requires two weeks notice.
8. Factors to consider before compelling annual leave: the purpose of holiday is to allow the worker to rest, relax and enjoy leisure time. If a worker might be restricted from using their holiday for the intended purpose, for example if they are self-isolating, it may not be appropriate to compel the leave.
If you have any queries or wish to discuss whether to grant the carry over annual leave during COVID-19, please do not hesitate to contact one of our experienced Employment Lawyers on 01202 525333 for further advice.