Employment Law FAQs: Carry-over of untaken leave allowed due to Coronavirus

30th March 2020

As we told you in our post over the weekend, workers and employees will now be allowed to carry forward untaken statutory annual leave into the next holiday year if it was “not practicable” for their leave to be taken in the holiday year that their leave was due: Carry-over of untaken leave allowed under new regulations. The relaxation of the rules on carrying over statutory annual leave are the result of amendments to the Working Time Regulations 1998 .

Here, we answer some of our clients’ most common questions regarding what the changes mean for their businesses.

Q: What was the position on workers and employees carrying over annual leave before the Coronavirus crisis?

A: Most of a worker’s annual minimum statutory entitlement of 28 days holiday (including bank holidays) could not be carried over into the next holiday year, meaning workers would lose their holiday if they did not take it in the holiday year in which it is due.

Q: How has the position changed under the relaxation of the rules?

A: Where it is not “reasonably practicable” for a worker to take some or all of their statutory annual leave as a result of the effects of Coronavirus on the worker, the employer, or the wider economy or society, a worker can now carry over leave into the next two leave years.

Q: Will my company’s workers and employees be allowed to carry over annual leave under the new rules?

A: Whilst the regulations are primarily aimed at key workers such as hospital workers and those working in the food supply chain, they extend to any employer whose operations have been impacted by the effects of the Coronavirus. If your business would be short-staffed by workers and employees taking time off during the period of social distancing restrictions, the new regulations will likely be relevant to you.

The changes will apply to employees, workers including agency workers, those who work irregular hours, and workers on zero-hours contracts.

Q: How will the new rules help my business?

A: Under the regulations, clients have an obligation to ensure that workers and employees take their statutory holiday entitlement in any one year and a failure to do so could result in a financial penalty.  The relaxation of the rules on carrying over annual leave may assist clients in meeting their legal obligations. Clients will not be under pressure to accommodate a large number of leave requests before the end of the holiday year.

Q: What does “reasonably practicable” mean?

A: The government’s amendment to the rules does not define on what is meant by “where it is not ‘reasonably practicable’ for a worker to take their annual leave”.  In the absence of further specifics from the government, we are guided by the Employment Tribunals’ legal test of reasonably practicability which has generated extensive case law.  As one example of such commentary, the Employment Appeal Tribunal held that the performance of an act is not reasonably practicable if “there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance.”  The EAT held that such impediments may be physical such as a postal strike, or illness of an individual.

Our advice to clients is it will be a question of fact in each case as to whether it is not reasonably practicable for a worker or employee to take their annual leave.

Q: What if I want to require my workers and employees to take annual leave during the Coronavirus?

A: While carry over is now permitted, clients can require their workers and employees to take statutory annual leave on specified dates.  However, it is important that clients give workers and employees adequate notice.  If the employment contract does not specifically state how much notice is to be provided, then the period of notice should be twice as much notice as the period of holiday leave that is to be taken.

Should you have any further questions or require any assistance with your employment arrangements during this difficult period, please do not hesitate to contact either one of our Co-Heads of the Employment team, Partners Tamara Ludlow and Ewan Keen