As the impact of COVID continues well past what everyone believed and hoped it would, we have been advised that the carrying forward of holiday is applicable “in any holiday year” where staff have been unable to take their statutory entitlement “if the reason is due to ongoing impact of COVID” (see below).
Some businesses have an enhanced holiday entitlement over and above the statutory and most have a clause in their contracts/handbook that allows staff to carry forward a maximum amount to the next holiday year, and some have a caveat on when that carried forward holiday is to be taken by.
Many businesses introduced the carry forward from the 2020 entitlement which are to have been used either in 2021 or split between 2021 and 2022.
The COVID amendment to the WTR 1998 permitted WTD leave (4 weeks) to be carried over “where in any leave year it was not reasonably practicable for a worker to take some or all of the leave to which the worker was entitled under this regulation as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society)”. This applies to employees who self-isolated, were on furlough or were required to continue working and could not take paid holiday.
Under regulation 13(11), such carried-over leave may be taken in the two leave years immediately following the leave year in respect of which it was due. Employers will only be able to require a worker not to take carried-over leave on particular days (as permitted under regulation 15(2)) where they have a “good reason” to do so; this is undefined but would include where there are holiday restrictions in place based on busy seasonal needs (example).
2021 unused WTD holiday (up to 4 weeks max) can be carried forward under the COVID amendments and (probably) general case law and used in 2022 and 2023 because they have not been able to take the holiday due to COVID-related customer demands, quarantine and travel restrictions. Any holiday they have taken in 2021 should be deducted from the four 4 weeks entitlement. The additional 1.6 weeks is lost.
As the furlough scheme ends at the end of September, clients were advised to ensure that holiday was taken by staff on furlough leave and ensured that any holiday pay was topped up to 100%.
Businesses can maximise the number of days that can be carried forward into any year and advise staff of a final date that holidays are to be used by. Otherwise, the overall holiday accrued will just continue to increase, and at a point this has to come to an end.
The purpose of annual leave is to allow staff to rest and recuperate and employers should continue to advise staff that holidays should be taken if practical to do so, even if this means just time away from the business.
The team are as always on hand for any further guidance.