How new legislation affected the rule for holidays carry over

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Lots of various surveys conducted in 2020 highlighted a growing problem of employees postponing taking their holidays during the leave year. Many people decided to wait and save annual leave allowance until the situation returned to some sort of normality. However, this approach made employers rather anxious to be faced with increased employee absences in 2021 while hoping for business to pick up. Before we discuss the new rules about holidays carry over let’s just briefly go through the usual carryover policy.

   For almost all workers in the a year. For those who work five-day weeks, this will amount to 28 days paid annual leave a year and, according to UK employment law, they can carry over a maximum of eight days into the next year. There are some circumstances where a large amount of annual leave can be carried over into the next year such as when an employee could not use annual holiday entitlement in the current year due to a long-term illness or maternity/paternity/adoption leave.

    To address issues created by Covid-19 Pandemic the new Guidance “Holiday entitlement and pay during coronavirus (COVID-19)” was issued to explain how holiday entitlement and pay to operate during the coronavirus pandemic, where it differs from the standard holiday entitlement and pay guidance.

Under the new rules, holiday entitlement not taken due to COVID-19 will now be carried over into the next two years.

Currently, workers are entitled to the statutory minimum of  5.6 weeks, which is split into 4 weeks and 1.6 weeks:

• the 1.6 weeks can be carried forward into the following leave year if a written agreement exists between the worker and the employer
• the 4 weeks cannot be carried into future leave years, so employers must facilitate these weeks being taken within the relevant leave year.

   However according to the new regulations “ 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, which gives businesses some flexibility in terms of spreading the accrued leave more evenly.

   The New Guidance defines “reasonable practical”. 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, an employer 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 a temporary cover of essential activities
• the health of the worker and how soon they need to take a period of rest
• 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.

   The Guidance also states that employers should do everything reasonably practicable to ensure that the worker can 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 allow workers to take holiday at the earliest practicable opportunity.

   Also, the new Holiday Guidance indicates that ‘carried holiday’ is subject to further protections. Employers must have a good reason to be able to refuse to allow a worker to take “carried holiday” on particular dates. This is an extra requirement specific to holidays carried over due to Covid-19.

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