Whilst the current COVID-19 pandemic has seen many businesses and industries suffer a significant downturn in work, for others the situation is reversed. Against this background, the UK government has announced further emergency legislation to relax the rules around the taking of annual leave.
Under normal principles in the Working Time Regulations 1998 (the WTR), annual leave entitlement must be taken in the holiday year to which it relates, with carry-over permitted in only very limited circumstances. However, with so many employees working to support the nation in the fight against the virus, the Working Time (Coronavirus) (Amendment) Regulations 2020 have been passed to amend the WTR.
With effect from 28 March 2020:
- Where it is “not reasonably practicable” for a worker to take some or all of their statutory leave entitlement as a result of the effects of COVID-19, the worker is entitled to carry forward such untaken leave into the next two leave years. The new rules do not appear to be restricted to certain industries or types of workers (for example, “key workers” as previously identified by the UK government). Instead, they simply require the worker to have been prevented from taking leave because of coronavirus, including effects “on the worker, the employer or the wider economy or society”. It is not clear how this is intended to be interpreted, but it would appear that the government has adopted a wide and inclusive approach rather than looking to restrict the application of the new rules.
- The new rules only apply to the four weeks of statutory annual leave provided for by reg. 13 of the WTR. The additional 1.6 weeks of annual leave provided for by reg. 13A of the WTR are not covered by these changes. Where companies provide for annual leave in excess of the statutory entitlements under the WTR, it remains at their discretion to allow carry-over of this excess.
- The carry-over is permitted into the two leave years immediately following the leave year in which it was due to be taken.
- The new rules also amend provisions of the WTR in respect of calculating payments in lieu of accrued but untaken annual leave on termination of employment; the new rules mean a worker can receive a payment in lieu of any of the statutory holiday they have carried over under these new rules, but have not taken at the time of termination.
- There is now a new restriction on an employer’s right to refuse leave being taken on particular days. Ordinarily, an employer can prevent annual leave being taken at certain times if the requisite notice formalities are met. These amendment regulations mean that an employer will only be able to require a worker not to take carried-over leave on particular days where they have a “good reason” to do so. “Good reason” for this purpose has not been defined, although genuine operational reasons are likely to be sufficient.
These changes are temporary emergency measures, although no time frame has been set for them ceasing to apply.