Carry-over of untaken leave allowed under new Regulations

Further to the Government’s announcement The Working Time (Coronavirus) (Amendment) Regulations 2020 were laid before Parliament on 27 March 2020, but came into force immediately after being made, i.e. from 26th March 2020.

In relation to the effects of coronavirus, the Regulations provide an exception to the prohibition on carrying forward untaken leave under Regulation 13 of the Working Time Regulations 1998 (WTR).

Purpose

The purpose of the Regulations is to ensure that:

• staff can continue working in the national effort against the coronavirus without losing out on annual leave entitlement;
• employers are relieved from the requirement to ensure that workers take statutory amount of annual leave in any one year; and,
• all employers affected by COVID-19 have the flexibility to allow workers to carry over leave at a time when granting annual leave could leave them short-staffed in some of Britain’s key industries, such as food and healthcare.

Changes

Regulation 13 WTR entitles workers to 4 weeks of annual leave in each leave year. Where any of this leave remains untaken at the end of a leave year, Regulation 13(9)(a) prevents that leave being carried forward into the next year. This is amended by Regulation 3 of the 2020 Regulations, which inserts an exception to this ban on carrying forward untaken leave. The exception applies where at the end of a leave year it was not reasonably practicable for a worker to take some or all of the leave to which the worker was entitled under Regulation 13 as a result of the effects of coronavirus, including on the worker, the employer or the wider economy or society. In this case the untaken leave may be carried forward and taken in the two leave years immediately following the leave year in respect of which it was due.

Regulation 14 WTR provides for a payment in lieu of any untaken annual leave where a worker’s employment terminates. This regulation is amended by Regulation 4 of the 2020 Regulations to provide for a payment in lieu of any leave that carried forward under the exception inserted by Regulation 3 and remains untaken on the date of termination.

Under Regulation 15(2) WTR, an employer may require a worker not to take leave on particular days by giving the worker notice that complies with the formalities set out in Regulation 15(3). Under new Regulation 13(12) WTR, of the 2020 Regulations, the employer will only be able to require a worker not to take carried-over leave on particular days where the employer has ‘good reason’ (not defined) to do so.

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