By Anthony Wilcox
The effects of COVID-19 on the workplace continue to be addressed.
Holiday is one area that will be affected in some workplaces, especially those where holiday cannot be taken owing to the need to provide essential services or due to the workforce being reduced to critical levels through illness. The government has recognised this and made amendments to the Working Time Regulations 1998. These have immediate effect.
Holiday is made up of different components. There is a core 4 weeks of mandatory annual leave that has its roots in the EU Working Time Directive, an additional 1.6 weeks of annual leave entitlement granted by English law and then, in some cases, further annual leave entitlement granted by an employer that is purely contractual.
The amendment to the Working Time Regulations 1998 now permits the carry-forward of any untaken portion of the core 4 weeks of annual leave derived from the EU Working Time Directive. This carry-forward is permitted where it was not reasonably practicable for the leave to be taken in the leave year as a result of the effects of the coronavirus, which is to include the effects on the worker, the employer or the wider economy or society.
The carried forward leave can be taken in the 2 leave years immediately following the leave year in which it accrued.
When the worker applies to take the carried forward leave, the employer can only refuse that request where they have a “good reason”, although no guidance has been provided to define what a good reason is likely to be. We expect this to be decided on a case by case basis, assessing the reasons given by the employer and the supporting evidence.
If a worker’s employment terminates before the carried-forward leave has been taken, then the employer is required to make a payment in lieu.
Beyond changes to the Working Time Regulations, we continue to receive guidance addressing issues arising from the coronavirus. Guidance issued by ACAS has addressed the topical question of bank holidays, recognising that in some cases workers are entitled to bank holidays as part of their annual holiday entitlement and yet qualifying employees may be furloughed and receiving a lower rate of pay than might normally be the case. The guidance makes clear that in these cases, the employer must top-up the pay to the level that would normally have been paid for that day of holiday. The employer may instead be able to defer those days of holiday to be taken later, but only if this is agreed or there is a contractual provision permitting it.
This is an extremely difficult time for employers and employees alike. Our Employment Law team have the knowledge and experience to assist you, whether you are an employer or employee and whether you need advice regarding furloughing, workplace matters associated with the coronavirus or other employment issues.
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