Holiday Leave, Coronavirus, and rolling over your days

As the UK gets closer to opening back up, and we move with growing momentum along the road mapped out by Boris Johnson, the sun has emerged in full force, and thoughts are firmly of the feeling of sand underfoot, the sound of water lapping against the shore, and of long lazy days in foreign lands. But, we are being firmly reminded these things are still far from guaranteed this Summer, so where does that leave us working Brits and our accruing holiday allowance?

Legal Entitlement

Almost all workers excluding those who are genuinely self-employed, but including workers on zero-hour or irregular hours contracts, are legally entitled to 5.6 weeks’ paid holiday per year. This is made of 4 weeks derived from EU law, and an additional 1.6 weeks from UK law. Many workers have contracts entitling them to additional paid “contractual holiday entitlement”. 

These two entitlements are treated slightly differently when it comes to managing untaken holiday leave. The 1.6 weeks can be carried forward into the following leave year so long as the arrangement is agreed between the worker and the employer, whilst generally speaking, the 4 weeks can only be carried into future leave years under specific circumstances such as where annual leave can’t be taken due to being on maternity or sick leave.

However, since coronavirus began causing so much chaos to our working lives,  the government passed emergency legislation to ensure businesses were given the flexibility they need to respond to the pandemic and protect workers from losing their statutory holiday entitlement. The Working Time (Coronavirus) (Amendment) Regulations 2020 give workers the right to roll over some or all of their 4 weeks’ holiday into the following two leave years where it has not been reasonably practicable to take it in the correct year.

What is Legally Practicable

The question of what is reasonably practicable has been left intentionally open to wide interpretation. There is an expectation that common-sense will be applied to arrive at a sensible decision, such as where a worker has been self-isolating or has been too sick to take holiday before the end of their leave year, or they have been required to continue working, as was the reality for many of our frontline key workers.

Workers who are on furlough are unlikely to need to carry forward statutory annual leave, as they will be able to take it during the furlough period. However, they must be paid the correct holiday pay for their salary, meaning an employer would have to top up their furlough grant. If, due to the impact of coronavirus, the employer can’t afford the difference, it is likely that this would make it not reasonably practicable for the worker to take their leave, enabling the worker to carry their annual leave forward.

The fundamental purpose of annual leave is to have a period of rest and relaxation away from work (rather than trips abroad), so not being able to dip your toes into a swimming pool on the Costa del Sol probably won’t be a good enough reason on its own to defer your holiday to a new leave year. It may be motivation for you to want to delay your leave until later in the year though, and maybe to search out some Winter sun.

Communication

Be sure to keep communication open with your employer about your intentions, and make sure they suit the needs of the business. If an employer feels that you have too much holiday built up, and that it may negatively impact the business if you wait to take it, they can ask you to take your holiday leave at a time that suits them as long as you are given the correct amount of notice, usually twice the length of the leave being taken. This means they could ask you to take one week of your holiday, at a time that suits them, with two weeks’ notice. 

An employer may also decide to ask that a percentage of the leave be taken by a certain date. It is likely that a furloughed employee will be expected to take a proportional percentage of their holiday leave during the period of furlough.