Without doubt it has been a year like no other for holidays, most of us have not taken our usual holidays during the last 12 months and some of us have worked though simply because there is nowhere to go for our much needed annual leave or work has been too busy to allow any leave to be taken.
Many people have been placed on furlough at some point during the last 12 months and have not for a whole host of reasons taken any holiday.
Over and above whether you have been working or on furlough leave most of the country has for many months been subject to a lockdown.
So what is the legal position with regard to your annual leave. All full time workers are entitled to a minimum of 5.6 weeks annual leave. Most of us know the principle that if you don’t use your holiday you lose it. So the question is does that rule apply to the leave accrued during the COVID- 19 pandemic ?
Workers are entitled to decide when they take their annual leave and there is usually a policy in place which sets out the specific details of how much leave you can take at any one time and how much notice an worker should give before they are allowed to take this leave. Notwithstanding this there are sometimes fixed periods of leave such as around the Christmas break, these are usually agreed with the workers in advance.
Employers can also request that an worker takes a period of annual leave, the employer has to give twice as much notice of a request to take leave as the period of time the worker is requested to take. For example if an employer wants their staff to take 5 days holiday they are required to give the worker 10 days’ notice of that request. The worker can refuse the request and not take their annual leave at the time. However there is usually a good reason for any such request by an employer, so due consideration should be taken by the worker before they act in haste and refuse the request to take their leave at a time prescribed by their employer.
During the course of the last year many workers have not taken any significant periods of leave and still have quite a lot of leave remaining. So the question for workers and employers is what agreements can they put in place to honour the minimum annual leave entitlement, so that the workers doesn’t lose out on their entitlement and the employer doesn’t find that they are just recovering from a down turn in work, then to find that most of their workers apply to take leave rather than lose it
Well some credit has to be given to the government at this point, not only did the treasury put together, with very short notice, the almost perfect job retention scheme, they also took the long term view on holidays and passed new emergency legislation to ensure that businesses have the flexibility they need to protect workers from losing their statutory holiday entitlement; The Working Time (Coronavirus ) ( Amendment ) Regulations 2020. These regulations enable workers to carry over holidays where the impact of the coronavirus have prevented the worker from taking some or all of the 4 weeks holiday accrued during the 2020 annual leave year. The untaken holiday may be caried forward for a further 2 years after the end of the holiday year in which the holiday was accrued.
There are some criteria which applies to this provision, the worker must be able to show that it has not been reasonably practicable to take the holiday; the business may have 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 or workers may have been self- isolating or too sick to take holiday before the end of their leave year
Workers who were placed on furlough and not taken leave, maybe because the employer hasn’t requested them to take it or the employer couldn’t afford to top the leave payment to 100% of the workers salary, would be entitled to carry their leave over under the emergency legislation provision.
Bank holidays will not generally be allowed to be carried over as it is expected that these will have been taken as paid holiday unless a worker has been too sick to take this period of holiday.
So the good news is that if you haven’t been able to take your holidays during the last 12 months you haven’t lost them and can legitimately carry them over for a further 2 years. Of course this is a discussion to be had with your employer and all agreements should be confirmed in writing.
