CORONAVIRUS - HOLIDAYS - 13.07.2020

When isn’t it reasonably practicable to take annual leave?

There seems to be a misunderstanding amongst many workers (and some employers) that they now have a right to carry over any untaken annual leave for up to two years thanks to coronavirus. This isn’t quite true. What’s the actual legal position?

Changing law

Prior to coronavirus, there was no general statutory right for a worker to carry over untaken annual leave from one holiday year to the next (although case law has provided exceptions for long-term sickness and maternity leave). Four weeks’ leave had to be taken in the holiday year in which it was due but you could - but didn’t have to - agree with your workers, e.g. in the employment contract, that they could carry over some or all of the additional 1.6 weeks (and any extra contractual leave) into the following holiday year. However, the Working Time Regulations 1998 (SI 1998/1833) (WTR) were amended on 26 March 2020 to provide that where, in any holiday year, it is “not reasonably practicable” for the worker to take some or all of their leave “as a result of the effects of coronavirus (including on the worker, the employer, or the wider economy or society)” , they are entitled to carry over that leave into the following two holiday years. This only applies to four weeks’ leave, not the additional 1.6 weeks - that can still be carried over by agreement.

Not reasonably practicable

There’s no definition of “not reasonably practicable” , so it will be left to case law to interpret. In the meantime, the government has published non-binding guidance (see Follow up ) which states that you should consider various factors, such as:

  • whether your business has faced a significant increase in demand due to coronavirus that would reasonably require the worker to continue to be at work
  • the extent to which your workforce is disrupted by coronavirus and your available options for providing 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 your holiday year to enable the worker to take leave at a later date
  • the extent to which their taking leave would impact on society’s response to coronavirus
  • the ability of your workforce to provide cover.

Pro advice. It then states you should do everything reasonably practicable to ensure your workers are able to take as much of their leave as possible in the holiday year to which it relates, and you remain able to require them to do so.

Pro advice. It’s clear that the main purpose of the measure is to ensure you have flexibility to respond to the pandemic, e.g. if you need staff to continue working and not take leave. It’s not about whether the worker wants to take their leave or not. So, in our view, they can’t assert that because they’re not comfortable with going abroad yet, it wasn’t reasonably practicable for them to take their leave.

Pro advice. As many workers still haven’t taken much leave during their current holiday year, now is the time to actively encourage them to do so and to warn them that it’s “use it or lose it” (and, in fact, case law says you must do this if you want to avoid any carry over) (see Follow up ). They can also still take leave during furlough, provided you top up furlough pay to full holiday pay. If your holiday year is the calendar year, they still have over five months in which to take their leave so, in most cases, there should be no need to carry any over (unless you agree otherwise, or they have a contractual carry over right). Alternatively, you could give them notice to take their leave on specific dates under the usual WTR notice rules - this would help to ensure you’re not inundated with leave requests towards the end of your holiday year (see Follow up ).

The law says that workers only have a right to carry over up to four weeks’ annual leave where the impact of coronavirus means it wasn’t reasonably practicable to take it in the current holiday year. It’s a limited right and won’t apply where the worker simply doesn’t want to take their leave this year through personal choice.

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