Annika Neukirch

Previous position on carry-over of annual leave

Prior to the WTCA Regulations being made, the right to carry over unused holiday entitlement to the next holiday year was limited. Employees in the UK are entitled by statute to up to 28 days of annual leave per year (or pro-rated entitlement for part-time employees). Of these, the first 20 must be taken in the holiday year in which they accrue, unless the individual is prevented from taking them due to sickness absence or another type of statutory leave such as maternity or shared parental leave. The other 8 days can be carried over where the employer permits this (but they do not have to allow this).

What has changed in respect of carry-over

From 26 March 2020 onwards, the scope to carry over the first 20 days has been widened. Where “it was not reasonably practicable for a worker to take some or all of the leave” due to “the effects of coronavirus”, they are entitled to carry forward such days to the following two leave years.

The regulations do not specifically define what is meant by “not reasonably practicable”, but do state that this includes the effects of coronavirus “on the worker, the employer or the wider economy or society”. It is not yet clear whether the lockdown period itself would make it “not reasonably practicable” to take holidays.

These regulations will be especially of interest to employers whose holiday years are ending within the next few months. It is not yet clear whether periods of annual leave can be taken while an employee has been designated as being on ‘furlough’ under the Coronavirus Job Retention Scheme. If it is not possible to do so, it is likely that many workers will obtain the right to carry over substantial periods of holiday into future holiday years.

Other changes

The WTCA Regulations also restrict an employer’s right to require a worker not to take annual leave on particular days. The WTCA Regulations state that employers may now only restrict the ability to take leave on particular days “where the employer has good reason to do so”. Again, there is no specification of what might be a good reason.

Another change is that where a worker leaves employment and is paid in lieu of any accrued but untaken holidays, this will require to include any holiday days carried over due to coronavirus as set out above.

Annika Neukirch is a senior solicitor at Stronachs