In March 2020, the government announced that they would be passing The Working Time (Coronavirus) (Amendment) Regulations 2020. The amended regulations created a further exemption to the Working Time Regulations 1998 which allowed, where it was not reasonably practicable for a worker to take some, or all, of their statutory annual leave entitlement for a reason related to coronavirus, they had the right to carry over up to 4 weeks of that annual leave into the next 2 leave years.
For clarity, the regulations specifically state that leave can be carried over for up to two years where an employee cannot take their annual leave as a result of the effects of coronavirus. They move on to clarify further that this could mean effects on the worker, the employer or the wider economy or society. This will mean that these regulations can be relied on in quite a wide range of circumstances.
This represents somewhat of a significant departure from the previously narrow position which was that an employee could agree with their employer to carry over 1.6 weeks of annual leave into the next holiday year only, normally representing the bank holidays each year. Additionally, an employee could carry over annual leave where they were unable to take it because of sickness or maternity.
With the expansion of the regulations last year, it is likely that employers now find themselves in unprecedented circumstances regarding carried over annual leave. It is therefore important that employers are aware of their rights in relation to this additional annual leave in order to try and limit any disruption that may be caused by employees with significant carried over annual leave.
This importance is amplified given that the amended regulations do not limit the carryover of annual leave related to coronavirus to 2020 alone. The regulations are clear that this amendment applies to any leave year moving forward, meaning the potential disruptions could continue.
In relation to any carried over annual leave, the employer’s options remain wide. They should still retain enough control over the annual leave to allow them to manage it in a way that reduces disruption as much as possible.
As a starting point, the amended regulations are clear in stating that employers can only refuse employees taking the carried over leave on certain days provided there is a good reason. What this means is that an employee cannot necessarily dictate when the leave is taken. They should be asked to make a request for the leave through the normal procedures and employers can then accept or reject those requests for the normal reasons, for example, where there are already a number of employees on annual leave at the same time. This should allow, as a starting point, HR Managers and Heads of Department a significant opportunity to avoid disruption and plan their workforce. Additionally, because the annual leave is carried over for two years, there is no rush for it to be taken and there is little risk that the employee will run out of time to take the carried over leave.
Although as a note, if the employee is not able to take the carried over leave within two years, despite repeated attempts to do so that have been rejected, they are likely to be entitled to further carry over for another year as a minimum.
The amended regulations also build on the content of the original regulations in allowing employers to dictate on what days leave, whether carried over or not, can be taken by an employee. In other words, an employer can require an employee to use their annual leave entitlement on certain days.
There are some requirements that employers must adhere to in those circumstances. They must give the worker notice which must specify on what days the leave is to be taken and if the leave is only to be for part of a day, it should also specify the duration.
The notice also needs to be given at least twice as many days in advance of the first day of the leave as the number of days of leave you are asking the worker to take. For example, if you are asking a worker to take one week of leave, you must give a minimum of 2 weeks’ notice.
In these circumstances, a worker has no recourse to challenge the decision that you have made. This means that through a combination of the above two options, employers will continue to keep control over annual leave and can manage any potential disruption properly.
In practical terms, employers should plan carefully what leave is to be taken when in instances where employees are carrying over leave from previous years due to the pandemic. Returns from furlough can mean that some staff have a lot of leave to use in a short period of time. HR Managers, HR Consultants and Heads of Department can manage client demand, staff resourcing and service quality through proper planning and careful consideration.
As a final note, if a worker was to leave part way through a holiday year, they are entitled to be compensated for any carried over annual leave that they haven’t taken. This means that it is important to make sure that proper records of carried over annual leave are made and updated throughout the holiday year.
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