Coronavirus: Workers Can Carry over Annual Leave for Two Years

Michael Tyndall
Trainee Solicitor

The UK Government announced that workers will be allowed to carry over up to four weeks annual leave into the next two leave years.

Holiday entitlement is split between 1.6 weeks’ statutory leave and four weeks’ leave outlined in EU legislation. Usually, this entitlement can’t be carried over leave years except in exceptional circumstances. That means any holiday that isn’t taken will be lost.

Because of the Coronavirus pandemic, the Government has amended the Working Time Regulations to give workers the right to carry over the four weeks of EU holiday into the next two leave years if they can’t take some or all of the holiday they are entitled to because of the effects of the pandemic. This includes the effects on the worker, the employer, the wider economy and society. The employer cannot prevent a worker from taking this carried over leave on particular days unless the employer has good reason to do so.

The regulations, which amend the existing Working Time Regulations, are called the Working Time (Coronavirus) (Amendment) Regulations 2020.

The Working Time Regulations apply to almost all workers in England and Wales, including agency workers, anyone who works irregular hours and people on zero-hours contracts.

Your employer will outline how their annual leave year works in your contract of employment. This could align with the calendar year and run from January to 31 December or run from your start date.

Nearly all employers are subject to the Working Time Regulations 1998, and therefore also the changes made because of the Coronavirus.

The aim of the amendment is to allow businesses under pressure from the impact of Coronavirus the flexibility to manage their workforce, whilst also protecting workers’ right to paid holiday.

Practically, this means you could be asked by your employer not to take your annual leave in the coming weeks and months as businesses battle with the economic pressures of Coronavirus. This is particularly relevant in key industries such as food and healthcare.

ACAS has published guidance that suggests that the new carry-over rule could apply to a furloughed worker, but it’s not clear how the Government intends furlough to work with annual leave. More guidance is needed on whether you can be on annual leave whilst furloughed, and how a period of annual leave would affect the three-week minimum requirement to be eligible for furlough.

If further guidance from the Government confirms it’s not possible to take annual leave whilst furloughed, no one could be expected to take annual leave whilst on it.

But, if there was a reasonable period of time for you to take your leave once you get back to work, the carry-over rule would probably not apply and the result would be that you would lose your remaining annual leave.

If your employer suspends annual leave when you get back to work after being furloughed to help rebuild the business, the amendments would probably apply and you should be allowed to carry over up to four weeks annual leave.

Things should be clearer once we have more guidance from the Government on annual leave and furlough.

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