In normal times it is unlikely in most circumstances holiday carryover into future years is offered to staff but the government have passed regulations to ensure businesses have the flexibility they need to respond to the coronavirus pandemic and to protect workers from losing their statutory holiday entitlement ; this enables employers to allow workers to carry holiday forward where the impact of coronavirus means that it has not been reasonably practicable to take it in the leave year to which it relates. Up to 4 weeks’ holiday may be carried forward into the following 2 leave years. When calculating how much holiday a worker can carry forwards, employers must give workers the opportunity to take any leave that they cannot carry forward before the end of the leave year.
When considering whether it was not reasonably practicable for a worker to take leave as a result of the coronavirus, so that they may make use of holiday carryover into future leave years, an employer should consider various factors, such as:
- whether the business has faced a significant increase in demand due to coronavirus that would reasonably require the worker to continue to be at work and cannot be met through alternative practical measures
- the extent to which the business’ workforce is disrupted by the coronavirus and the practical options available to the business to provide temporary cover of essential activities
- the health of the worker and how soon they need to take a period of rest and relaxation
- the length of time remaining in the worker’s leave year, to enable the worker to take holiday at a later date within the leave year
- the extent to which the worker taking leave would impact on wider society’s response to, and recovery from, the coronavirus situation
- the ability of the remainder of the available workforce to provide cover for the worker going on leave
Employers should do everything reasonably practicable to ensure that the worker is able to take as much of their leave as possible in the year to which it relates, and where holiday carryover is granted, it is best practice to give workers the opportunity to take holiday at the earliest practicable opportunity.
At this time of year employees who haven’t taken their full entitlement often request payment instead for that unused holiday. On the face of it, it sounds like a win win situation as the employee gets some extra money and you don’t have to arrange cover while they are on annual leave (and this year you might think it would avoid the need to allow carry over causing disruption in 2021 and 2022).
Unfortunately the legal answer to employees who ask is “NO!” if they only get the statutory 5.6 weeks’ leave. This is because the point of holiday isn’t about holiday pay it is to take time off work. So if employees stay at work and are being paid in lieu, you’re not giving time off for their well-being. BUT if you give your employees more holiday than the statutory leave, then you can agree separate arrangements for what happens with any unused additional leave. So if they get more than 28 days (for FT staff) you can agree to pay them in lieu of taking those extra days.
The Government have also updated their guidance regarding holiday and furlough, in particular wording relating to the festive period that you should be aware of – it explicitly states:
You can only place employees on furlough if coronavirus (COVID-19) is affecting your operations.
You should not place employees on furlough just because:
- they are going to be on paid leave
- you usually do less business over the festive period
If you are furloughing staff because coronavirus is affecting your operations you can then require or allow staff to take holiday including bank holidays whilst on furlough. Pay must be topped up to 100% for dates that are deemed as holiday.
The full details can be found here