COVID-19 – Carrying over annual leave

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Carry-over of annual leave

The Working Time Regulations have been amended to allow for carry-over of annual leave that has not been taken due to COVID-19.

This rule only applies to the 4 weeks of statutory annual leave (or the worker’s pro-rata entitlement) that is derived from the EU Working Time Directive. It does not apply to the additional 1.6 weeks’ statutory leave that workers are entitled to under domestic law, or any additional leave they may be entitled to in accordance with their contracts.

These 4 weeks of leave can only be carried-over where it was ‘not reasonably practicable’ for a worker to take some or all of this leave in the leave year in which it is due, because of the ‘effects’ of COVID-19. We are told that these ‘effects’ include effects on the worker, the employer or the wider economy or society.

No guidance has been provided as to what is “not reasonably practicable”. This is likely to be fact-sensitive for each worker. Presumably the ability to take leave must be genuinely and significantly affected by COVID-19.

Such carried-over leave may be taken in the 2 leave years immediately following the leave year in which it was due. Should the worker’s employment be terminated before they take this carried-forward leave they can receive a payment in lieu for it.

Can employers refuse when workers request to take their carried-over leave?

There has been a change to employers’ rights to refuse leave on particular days. Previously, an employer could require a worker not to take leave on particular days by giving the worker at least as much notice as the amount of leave that they were refusing. This is still true, but if refusing to take ‘carried-over leave’ on particular days, employers must also have ‘good reason’ for doing so.

No explanation has yet been provided as to what ‘good reason’ is for this purpose.

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