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Coronavirus (COVID-19): Annual leave carry over restrictions relaxed

31 March 2020
The government has amended the Working Time Regulations 1998 ("WTRs") in accordance with its press release, relaxing the rules on carrying over annual leave to support key industries during COVID-19.  

The new legislation allows up to four weeks' annual leave untaken due to the coronavirus pandemic to be carried forward into the next two leave years.  The restriction on carry over has been relaxed with immediate effect.  The new law applies to the four weeks of annual leave provided for by Regulation 13 of the WTRs but not the additional 1.6 weeks of annual leave provided for under Regulation 13A of the WTRs. 

The new law states that carry over is permitted in circumstances where it was "not reasonably practicable for a worker to take some or all of the leave to which the worker was entitled… as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society)… ".

Comment 

The amendment has been brought in to alleviate pressure on employers impacted by the coronavirus and will provide the essential flexibility needed by many organisations.  The press release states: "This will mean staff can continue working in the national effort against the coronavirus without losing out on annual leave entitlement."

Employers will undoubtedly be faced with a number of queries with regard to the rule change and will need to be prepared to ensure that requests for carry over are not only dealt with in a fair, consistent and non-discriminatory manner, but are also processed in line with the new legislation.  

It remains to be seen exactly how the legislation will be interpreted by courts and tribunals and whether it is "reasonably practicable" to take holiday in various scenarios.  Nevertheless, whilst carry over is now permitted, employers that would rather workers took the leave this year can instruct their workers to take leave by giving the requisite notice. We can help with this process.   

Administratively employers will need to set up processes to ensure the annual leave carried forward is captured and recorded appropriately.  

The question of whether employees can be directed to take holiday during furlough or be rotated in and out of furlough so that they can take holiday is unclear. If it is the latter, there is a concern that holiday could break the '3 week' rule under the Coronavirus Job Retention Scheme and void applications for grants. Further guidance is urgently needed with the holiday period upon us.

If you need any further advice with regard to the issues raised in this update please do not hesitate to contact us.  

Further Reading