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Education briefing - Coronavirus: when can untaken statutory holiday be carried over?

  • United Kingdom
  • Education - Briefings
  • Education - Coronavirus

02-04-2020

The Working Time (Coronavirus) (Amendment) Regulations 2020 came into force on 26 March 2020. These amend the Working Time Regulations 1998 to create an exemption relating specifically to COVID-19 and holiday leave.

Under the Working Time Regulations 1998, workers are entitled, under regulation 13 to 4 weeks holiday and under regulation 13A to an additional 1.6 weeks. Prior to the amendment contained in the 2020 Regulations there was no right for workers to carry any of the 4 weeks leave over to the next holiday year and it can only be done in respect of the 1.6 weeks leave where that is provided for in a relevant agreement.

Though note that employers can always permit workers to carry over leave where both parties agree and, in certain cases, case law has decided that workers can carry forward unused statutory holiday (such as where they are unable to take holiday due to maternity or sick leave).

The 2020 Regulations provide that where it is not reasonably practicable for a worker to take some, or all, of the 4 weeks holiday to which they are entitled as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society), they have the right to carry this forward into the next 2 leave years. The 2020 Regulations also provide that an employer may only require a worker not to take this carried forward leave on particular days where the employer has good reason to do so. The new provisions do not apply to the 1.6 weeks under regulation 13A leave, but this still can be carried forward by agreement between workers and employers.

The Government’s intention behind the 2020 Regulations is to ensure all employers affected by COVID-19 have the flexibility to allow workers to carry over leave. Whilst the amendment contained in the 2020 Regulations is not limited to certain sectors, the Government’s press release (which can be found here) states that the change is “aimed at allowing businesses under particular pressure from the impacts of COVID-19 the flexibility to better manage their workforce, while protecting workers’ right to paid holiday”.

However, as mentioned, the wording of the 2020 Regulations merely require that it was not reasonably practicable for the worker to take their full 4 weeks leave as a result of the effects of coronavirus. That could therefore include workers who are not able to take their holiday due to being furloughed. See our briefing for more details on the furlough scheme.

A distinction should be drawn however between those workers for whom it is not reasonably practical to take annual leave, to whom the rules apply, and those workers who are able to take leave but would prefer to postpone it because of the impact of the coronavirus on their pre-arranged holiday travel or other personal arrangements. It does not appear that the rules are intended to provide a statutory right to carry forward leave in these circumstances.

Other factors that are likely to be relevant will include the sector within which individuals work, their role and, of course when the holiday leave year runs from. For those with a leave year which is the same as the calendar year the current effects of coronavirus would need to remain in force for sometime before it became not reasonably practicable to take their leave before the end of the year. Where, however, the leave year replicates the academic year that point will arrive sooner.

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