One year after the first lockdown and the UK is facing another year of uncertainty around the issue of taking holidays abroad. You may be getting lots of questions from employees about carrying over holidays during Covid, we try and answer some of the main questions here.
What is the law on carrying over holidays?
All workers are entitled to a minimum of 5.6 weeks of statutory holiday each year. This is split into 4 weeks and 1.6 weeks, and there are some differences in the rules that apply:
- the 1.6 weeks can be carried forward into the following leave year if a written agreement exists between the worker and the employer
- generally, the 4 weeks cannot be carried into future leave years, so employers must facilitate these weeks being taken within the relevant leave year
However, under certain circumstances you must allow the 4 weeks to be carried into future leave years. Where a worker cannot take annual leave due to them being on maternity leave or sick, you must still allow workers to carry their annual leave forwards.
Have the holiday rules changed due to Covid-19?
Yes. Last year the government passed new emergency legislation to ensure businesses have the flexibility they need to respond to the coronavirus pandemic and to protect workers from losing their statutory holiday entitlement. These regulations enable workers to carry holiday forward where the impact of coronavirus means that it has not been reasonably practicable to take it in the leave year to which it relates.
Where it has not been 'reasonably practicable' for the worker to take some or all of the 4 weeks’ holiday due to the effects of coronavirus, the untaken amount may be carried forward into the following 2 leave years. When calculating how much holiday a worker can carry forwards, you must give workers the opportunity to take any leave that they cannot carry forward before the end of the leave year.
What is 'reasonably practicable'?
When considering whether it was not reasonably practicable for a worker to take leave as a result of the coronavirus, so that they may carry untaken holiday into future leave years, you should consider various factors, such as:
- whether the business has faced a significant increase in demand due to coronavirus that would reasonably require the worker to continue to be at work and cannot be met through alternative practical measures.
- the extent to which the business’ workforce is disrupted by the coronavirus and the practical options available to the business to provide temporary cover of essential activities.
- the health of the worker and how soon they need to take a period of rest and relaxation.
- the length of time remaining in the worker’s leave year, to enable the worker to take holiday at a later date within the leave year.
- the extent to which the worker taking leave would impact on wider society’s response to, and recovery from, the coronavirus situation.
- the ability of the remainder of the available workforce to provide cover for the worker going on leave.
A common misconception is that this legislation applies where a worker does not wish to take holiday during a period of Covid restrictions because they can’t travel, meet up with friends or go abroad. That is not the case. In that situation, the legislation does not apply, and you must ensure that the worker takes at least their statutory minimum holiday. Employers should do everything reasonably practicable to ensure that the worker is able to take as much of their leave as possible in the year to which it relates, and where leave is carried forward, it is best practice to give workers the opportunity to take holiday at the earliest practicable opportunity.
What if the employer has a policy that says they can carry only 5 days into the new year?
So long as the worker has taken at least their statutory minimum holiday, a ‘use it or lose it’ policy – whereby untaken leave above statutory minimum is lost if not taken within a leave year – is perfectly lawful (save where a worker has a statutory right to carry over holiday such as during maternity or sick leave). If you want to use your discretion to allow carry over of holiday in the current Covid climate that is permissible, but there is certainly no obligation to do so.
Can I force workers to take annual leave?
Yes. Workers do not necessarily have the right to choose when to take their holiday and under the Working Time Regulations 1998 you can tell workers when to take leave. However, you must give the worker notice to take holiday that is at least twice the length of the holiday you are requiring them to take (i.e. you must give two weeks’ notice for a one week holiday, four weeks’ notice for a two week holiday etc.)