Coronavirus : Ability to carry over annual leave

The ability to carry over annual leave due to the Coronavirus pandemic has been addressed in the newly enacted Working Time (Coronavirus) (Amendment) Regulations 2020 which allows employees and workers to carry over up to four weeks annual leave into the next two leave years, if they have been unable to take it this year due to the Coronavirus pandemic.

The ability to carry over annual leave – How it will work

This blog details why the regulation has been introduced, how it will work and who is entitled to carry over annual leave.

Why is this being introduced?

The Working Time (Coronavirus) (Amendment) Regulations 2020, (which came into force on 26 March 2020), amend the Working Time Regulations 1998 to create a specific exemption for employees to carry over up to four weeks of unused leave where it was not “reasonably practicable” for them to take it this year due to Coronavirus.

During these unprecedented times, many individuals are continuing to work across the labour market in hospitals, pharmacies, delivery services and supermarkets to name a few in order to help our country deal with the Coronavirus pandemic. This legislative amendment, Alok Sharma said, will mean that “these valued employees do not lose out on the annual leave they are entitled to as a result of their efforts, and employers are not penalised.”

The government has said that the change is also aimed at allowing businesses under particular pressure from the impact of Coronavirus the flexibility to better manage their workforce, while protecting individuals’ annual leave rights.

What is “reasonably practicable”?

This is not completely clear and is not defined in the Regulations. However, Acas guidance suggests that it could apply where a worker:

• is self-isolating and too sick to take their annual leave before the end of the leave year;
• has been out on lay-off or furlough leave; or
• has been required to continue working and could not take paid holiday.

Normal entitlement to annual leave

Currently, under the Working Time Regulations, most employees and workers have a right to a minimum of 5.6 weeks’ paid annual leave, comprised of 4 weeks’ leave deriving from EU law, and 1.6 weeks’ statutory leave under UK law. This equates to 28 days a year for a full-time employee, including bank holidays.

The new amendment to the Regulations only deals with the 4 weeks’ EU leave. The remaining balance of 1.6 weeks statutory leave will not be affected (but can be carried over for up to a year by a ‘relevant agreement’ under existing law).

The carried over annual leave will then be allowed to be taken in accordance with the normal procedures for the employer and under the Working Time Regulations. Employers will only be able to require an individual not to take carried-over leave on particular days, where they have “good reason” to do so (which is itself undefined).

The Working Time Regulations are also amended to ensure individuals will be paid in lieu of any untaken carried-over holiday where their employment is terminated before they had a chance to take the leave.

Who can carry over annual leave?

The Working Time Regulations 1998 applies to employees, workers (including agency workers), those who work irregular hours, and workers on zero-hour contracts and so it will be these individuals who are entitled to carry over their annual leave.

If you would like further guidance in relation to this topic, please do contact a member of the Employment team.

This blog was co-written by Adam Wheal, trainee solicitor and Clive Dobbin, Partner.

Our dedicated “Coronavirus (COVID-19) – Legal advice and guidance” page contains advice and guidance on matters affecting, businesses, employers, self-employed, employees, planning legislation, property etc. and is regularly updated as and when new guidance comes in from the government or other regulated bodies.