New Government Guidance on Your Holiday Rights During Coronavirus

David Jones, Solicitor
Author:
David Jones
Employment Law Associate Solicitor
Date:
15/05/2020

New guidance on employees and workers holiday pay and entitlement during the Coronavirus pandemic has been issued by the government. It explains how holiday pay and leave will work during these unusual times.

The new guidance looks at employees and workers who are still working and also at anyone who has been furloughed on the Coronavirus Job Retention Scheme. It looks at: 

  • Accrual of annual leave entitlement
  • Taking holiday
  • Rate of holiday pay
  • Carrying annual leave forward

Annual Leave Entitlement if You’re Still Working

Most workers are legally entitled to 5.6 weeks of paid holiday each year. This is known as your statutory holiday. This includes if you are on a zero-hour or irregular hours contract.

If your employment contract entitles you to more paid annual leave than the statutory amount, you and your employer can agree to alter this part of your contract as long as your holiday doesn’t go below the statutory amount of 5.6 weeks.

Your entitlement to paid holiday is the same whether you are actually working or if you are on maternity or paternity leave, adoption leave or sick leave.

If you are currently on sick leave you can ask to take holiday, but your employer cannot make you take your annual leave.

Annual Leave Entitlement if You’re Furloughed

If you’re on Furlough, you’ll still accrue your annual leave entitlement. This includes your statutory leave of 5.6 weeks, and any additional holiday entitlement above this in your employment contract.

This amount is based on someone working full time, so if you work part time, your amount of statutory annual leave will be less. You can work it out with the government holiday calculator.

Taking Holiday When You’re Still Working 

Your employer can still ask you to take holiday if you are still working. They can also cancel your holiday. If they do this, they have to give you the right amount of notice.

If you are being asked to take holiday on specific days, your employer has to give you double the length of the holiday you have to take.

If your employer is cancelling your holiday or asks you to avoid taking holiday on certain dates, they need to give you the same notice as the length of your planned holiday.

Taking Holiday When You’re Furloughed 

You can still take your holiday if you’re on furlough and it doesn’t affect your position. Your employer could ask you to either take your leave or cancel it while you’re furloughed, but the notice periods are still the same.

Can My Employer Insist I Take Holiday During Furlough?

The new government guidance confirms that your employer can decide that you must use your annual leave during furlough. Because annual leave entitlement continues to accrue during furlough, many businesses are concerned about employees returning to work in the autumn with lots of unused annual leave.

But, if your employer wants you to take annual leave when you’re on furlough, they have to consider if your circumstances mean that you couldn’t enjoy the rest and relaxation of your annual leave. This is because the right to annual leave has a health and safety purpose behind the legislation.

The Rate of Holiday Pay

This hasn’t changed and holiday pay should be worked out using current legislation meaning your holiday pay is calculated based on your regular hours and pay. If your hours or pay changes, your holiday pay is worked out as an average of the previous 52 weeks of pay. 

What if you’re Furloughed?

If you’re on furlough, holiday pay is a bit more complicated. Your employer has to calculate the right amount based on your regular hours and pay. When they calculate this, if your holiday pay is more than you’re getting whilst furloughed, they must make up the difference. They can still claim 80% from the government to cover most of your holiday pay cost.

Carrying Over Annual Leave

Because the government has recognised that it’s difficult for key workers to take their annual leave, they’ve amended the Working Time Regulations. This emergency legislation is called The Working Time (Coronavirus) (Amendment) Regulations 2020.

Your 5.6 weeks of statutory holiday is split into 4 weeks, given by EU law and 1.6 weeks from UK law. Usually you can carry over 1.6 weeks if you and your employer have a written agreement that allows you to do that, but you can’t carry over the 4 weeks. But your employer has to give you the opportunity to take those 4 weeks holiday.

The emergency legislation has been put in place because the government recognised that some employers can’t allow their staff to take holiday at the moment because they are key workers and are crucial to keeping the country going.

You can now carry over your holiday if you haven’t been able to take it in the relevant holiday year because of the Coronavirus pandemic. You can carry this over to the next two leave years.

There is some guidance to help decide if this new legislation relates to you and whether you can carry over your annual leave.

The phrase the legislation uses is ‘reasonably practicable’ – was it reasonable that you couldn’t take your annual leave because of Coronavirus?

Your employer will consider:

  • If there was an increased demand because of Coronavirus that meant you had to be at work
  • Whether the business was disrupted by Coronavirus and whether it could cover key activities
  • When their workers will need to take some rest and the health and wellbeing of their staff
  • How much time is left in their leave year
  • The effect of the holiday on the response to or recovery from Coronavirus
  • Whether it has enough staff to cover the annual leave

Your employer should do everything they can to make sure you can take as much leave as possible in the year it relates to. And they should let you take any carried over leave as soon as possible.

If you’re furloughed, you probably won’t need to carry over any leave as you can take your annual leave as normal. Your employer must pay the right amount of holiday pay and they will probably need to top up your pay. If they can’t, you could carry over your leave.

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