22 Jul 2020
At this time of year, thoughts turn to the trips and holidays we plan to take. In the short term, coronavirus has put paid to that. But while we may not be able to travel, employees are still accruing holiday, and many are wondering how the rules will play out…
Adam Bernstein
Job Title
Coronavirus has stopped travel, but employees are still accruing holiday.
According to Government guidance on holiday entitlement and pay issued in mid-May, an employer can stop a worker taking time off on particular days. But to do this, it must give notice equivalent to double the length of the holiday requested. Similarly, where an employer wants to cancel holiday or stop a worker from taking holiday on a particular day, it must give notice equivalent to the length of the previously scheduled holiday.
The guidance says notice requirements apply as normal, regardless of whether employees are furloughed.
Where matters get interesting is in the new provisions brought in by the Working Time (Coronavirus) (Amendment) Regulations 2020. These allow, in some circumstances, for leave to be carried over to another year.
The legal minimum of 5.6 weeks is made up of 4 weeks from EU law and 1.6 weeks from UK law. In normal circumstances, the 4 weeks must be taken in the leave year they relate to, while the law allows for 1.6 weeks to be carried over into the next leave year if a written agreement exists to this effect. However, the law now allows where it is “reasonably practicable” for workers to take leave as a result of the effects of coronavirus into the following two leave years.
But what is “reasonably practicable”? The guidance says employers should consider:
Nevertheless, the guidance states that employers “should do everything reasonably practicable to ensure that workers are able to take as much of their leave as possible in the year to which it relates and, where leave is carried forward, workers should be given the opportunity to take holiday at the earliest opportunity”.
As for those furloughed, the guidance says these workers should be able to take leave while on furlough and so should be unlikely to need to carry over leave.
Employers should tell workers they can carry over leave; case law has shown that holiday entitlement can only be lost if the worker had the opportunity to take it – this won’t apply if employees didn’t know about their rights and so couldn’t take leave.
It should be noted that the Working Time Regulations 1998 states that statutory holiday entitlement can only be paid in lieu when an employee leaves the employer. This has not altered.
As for furloughed workers, nothing has changed; a worker on holiday should be paid as normal. This may get difficult for an employer where a furloughed worker’s normal pay is higher than that during furlough, as the rules require an employer in this situation to pay the difference even though it cannot be reclaimed through the Coronavirus Job Retention Scheme.
Employers need to watch the changing employment landscape and act accordingly. With tighter purse strings for all, the risk of conflict and disputes will rise. Good legal advice could be helpful to those with questions or difficult situations to resolve.
