Annual Leave post-restrictions

With lockdown restrictions lifting further as summer approaches, we have had a rise in enquiries from employees regarding their rights when it comes to annual leave. Below we have set out some Q&A[link] on this topic. 

Can my employer force me to take a holiday? 

Employers can tell employees when to take their holiday, provided they have either the right to do so within the employment contract, or otherwise give the right amount of notice. The required notice is at least twice as many days as the amount of holiday that they want the worker to take. For example, if the employer requires the employee to take one week’s annual leave, it must give them at least two weeks’ advance notice. 

This position does not change when an employee has been furloughed. They can still be asked to take holiday, but this must be paid at their pre-furlough rate of pay (if their salary has been reduced); we address this further below. 

Can my employer refuse any holiday requests? 

Your employer can refuse your holiday request if they have a business reason to do so, for example, due to client needs or during busy periods where your absence would leave them short staffed. Although your employer can refuse to authorise yourholiday leave at a certain time, they cannot refuse to let you take your minimum leave entitlement of 28 days for the year.

If you have already booked the time off, your employer can ask you to cancel a holiday, but they should give at least the same number of days’ notice to cancel as the length of the annual leave. Where you have carried over annual leave from last year due to Covid-19, the regulations also specifically says that an employer may only cancel the taking of leave which has been carried over, where it “has good reason to do so”. If your employer needs you to change your holiday plans or refuses a request, they should clearly explain the reasons for this.

The best practice is to avoid cancellation as employers have an obligation to encourage staff to take a break and rest from work and cancelling an employee’s planned holiday should always be a last resort – with every effort made to allow employees to take annual leave as and when requested. 

Can I carry over my holiday due to Covid? 

In normal circumstances, employers can require their workers to take their holiday entitlement within the leave year in which it is accrued, unless they are unable to because of sickness or statutory leave such as maternity leave. In those circumstances, leave can be carried over to the next leave year. 

The government amended the regulations in March 2020, providing that employees can now carry up to 4 weeks’ annual leave forward over a 2-year period if they have not been able to take their leave due to COVID-19. This only applies to leave where it was not ‘reasonably practicable to take because of Covid”; for example, where an employee was ill, self-isolating or asked to continue working as a result of the demands of Covid, such as frontline health care workers or supermarket staff. Theseregulations will override any provision in an employment contract stating that carry over is not permitted, but only in the limited circumstances of the pandemic. 

Having said this, there will be many employees who had holidays cancelled because of the virus or who didn’t want to take leave if they couldn’t travel, even in the UK. This is arguably not covered by the amended regulations as they could still have taken a break from work. However, employers might want to consider allowing staff to carry over at least part of their accrued leave as a gesture of goodwill to acknowledge the efforts of staff in trying circumstances. This can ensure good continuing employee relations; therefore, it is worth having this conversation with your employer.

Can I take holidays on furlough? 

The government have confirmed that an employee can be on furlough and annual leave at the same time. This means that if staff have pre-booked holidays or are required to take bank holidays off, employers don’t have to cancel their leave and add it back into their holiday allowance.

However, the Working Time Regulations (WTR) requires holiday pay to be paid at the normal rate of pay or, where the rate of pay varies, calculated on the basis of the average pay the employee received in the previous 52 working weeks. Therefore, if an employee takes holiday whilst on furlough, their employer should pay them their usual pay by topping it up to 100%.

If the employer and employee agree, and the contract permits it, holiday can be carried forward if the employer can’t afford to top it up or the employee wants to take this at a time when they aren’t locked down.

Government guidance on holiday entitlement and pay during coronavirus (COVID-19) states that: “If an employer requires a worker to take holiday while on furlough, the employer should consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of the holiday.”

We have written a blog that goes into detail on furlough and annual leave and how it works.

Can I change my holiday if I test positive for COVID? 

The simple answer is yes; if you are sick during a holiday period and would have been incapable of work then you may choose to treat the period of incapacity as sick leave, and seek to reclaim the affected days of holiday. If there’s no right to cancel your leave within your contract, you’re likely to need your employer’s consent to cancel your annual leave, but this should not be unreasonably withheld. You should contact your employer as soon as you received your positive test, to explain the result and enquire as to your employer’s policy in respect of the pre-booked annual leave.

What if I have to isolate on return from holiday? Will I be paid? 

Most people returning to the UK must self-isolate or quarantine for 10 days, depending on the country they’ve travelled from. Employees and workers who need to self-isolate should not leave their home to go to work. If the person can work from home, their work may not be affected by having to self-isolate. If an employee cannot do their job from home, they should talk to their employer to agree what type of leave to use. Options could include:

·        extra paid holiday (‘annual leave’)

·        unpaid leave

·        any other type of ‘special’ paid leave the organisation might offer

Employees and workers are not entitled to Statutory Sick Pay (SSP) if they’re self-isolating after travel abroad and cannot work from home. But an employer can choose to pay them sick pay, at the same rate as SSP or a higher rate,  if they want to. Someone may be entitled to SSP for another reason, for example if they have coronavirus (COVID-19) symptoms. It’s a good idea to check your organisation’s policy to see sick pay rules.

If you think you have been treated unfairly in respect of your holiday entitlement or have an enquiry about an employment law matter, please contact us at  enquiries@thrivelaw.co.uk

Disclaimer…

Please note this blog is for reference purposes only and is only accurate at the date it was published. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action. Please contact us if you have any questions at enquiries@thrivelaw.co.uk   

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