The Working Time Regulations 1998 give all workers a basic entitlement to four weeks of annual leave in each leave year, as well as a further 1.6 weeks of additional leave, making a full time total minimum leave entitlement of 28 days’ leave (including Bank Holidays).  The basic four week entitlement cannot generally be carried forward into the following leave year.  However, the Working Time (Coronavirus) (Amendment) Regulations 2020, which came into force on 26 March 2020, relaxes this restriction on carrying over leave where annual leave cannot be taken due to the COVID-19 pandemic.

This change is aimed at encouraging employees to continue working to combat Coronavirus without losing out on annual leave entitlement.  Under the new Regulations, where it has not been ‘reasonably practicable’ for a worker to take some or all of their four weeks’ leave as a result of the effects of COVID-19 (which includes effects on the worker, the employer or the wider economy or society), the worker is entitled to carry forward their untaken leave into the following two leave years. 

The Regulations also introduce a calculation for the payment in lieu of leave where a worker’s employment terminates, to ensure they receive a payment in lieu of all untaken leave, including carried-over leave.

In addition, the Regulations restrict an employer’s right to refuse leave being taken on particular days.  In the case of carried-over leave, an employer will only be able to refuse a request to take leave on particular days where the employer has ‘good reason’ to do so.  We do not know yet what might constitute ‘good reason’.

It should be noted that these new rules only apply to the basic four weeks’ leave entitlement, and not the additional 1.6 weeks’ leave, although this can still be carried over for up to a year by agreement.  Employers often also give workers additional contractual leave and the terms of the contract of employment will apply in relation to the right to carry over any of that leave.

If you have any queries regarding this issue or any other Coronavirus related matter, please do not hesitate to contact our Employment team.

2 April 2020