With the coronavirus situation escalating, many employers in a position to stay open may be wondering how they should manage annual leave requests. Ben McCarthy, lead researcher and employment law writer at Croner-i, examines this in more detail below.
The summer months are getting closer and many staff will likely have booked periods of annual leave to travel abroad or to go to different parts of the UK. However, in light of the coronavirus outbreak, an increasing number of people may be having to change their plans and request to cancel pre-booked periods of leave. Some employees may even choose to do this, with the hope of delaying their leave until later in the year when it is hoped that the situation will not be as severe. Initially, employers may be happy to let staff cancel their leave, especially if faced with situations where other employees may need to self-isolate. They may even want to encourage staff to cancel their leave in order to ensure that cover will be available should their colleagues fall sick. However, there are several things they should bear in mind.
Annual leave entitlements
The Working Time Regulations 1998 set out that all employees and workers are entitled to 5.6 weeks (28 days) of paid annual leave per leave year. If an individual works on a part-time basis they are entitled to the appropriate amount of annual leave on a pro rata basis. To this end, while businesses reserve the right to refuse leave requests, employers are legally obliged to provide opportunity for staff to take their full leave entitlements. Leave years can be set by the company and tend to fall either between April and March or January and December.
Employers may be concerned over when their staff will be provided the opportunity in which to take their leave in 2020. After all, many staff will probably want to save their leave until the situation has improved and employers may be happy for them to do so. However, it should be remembered that if the situation has calmed towards the end of the year, staff may all then wish to have their holidays at once, something it may not be possible for employers to allow. To this end, while it is important to maintain a degree of flexibility in this situation, it may be worth asking staff to keep some of their pre-booked leave if possible. Helpfully, the Working Time Regulations 1998 have been amended to allow for 4 weeks of leave to be carried over into the next two leave years where it was not reasonably practicable to take leave as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society). This now means that all statutory minimum annual leave can be carried over, albeit carrying over the 1.6 weeks of additional leave is still subject to agreement by the employer and can only be carried over into the next leave year. A relevant agreement must be in place to permit the additional leave to be carried forward. While there is no requirement to give notice to a worker that their leave will be carried over, it may be useful to set out, at the appropriate time, how much will be carried over and how.
When considering whether it was not reasonably practicable for workers to take leave in the current leave year, Government guidance suggests that employers take account of:
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 leave is carried forward, it is best practice to give workers the opportunity to take holiday at the earliest practicable opportunity.
Cancelling pre-booked leave
Usually, it is up to an employer if it lets staff cancel pre-booked leave. After all, in usual circumstances, it is likely that management will have planned to cover for their absence and may not wish to change these plans, especially on short notice. Therefore, team leaders are free to refuse this request, but in light of the current situation with the coronavirus, it would be advisable for them to proceed carefully. With tensions running high, and staff likely to be increasingly worried over the implications of the virus, allowing them to cancel periods of booked leave may be a key way of maintaining stronger relations with a workforce.
If staff do want to cancel leave, a conversation should be held over why this is and if there are any alternatives that could be considered at this time. For example, if a pre-booked holiday has been delayed for a few months, employers could consider letting the leave be deferred to these new dates so it is still booked in to take. Employees should also be reminded that if they do cancel leave now, later requests will only be granted if business need can permit it. Remember, however, the entitlement to carry leave over as set out above.
Enforcing leave cancellations
Employers reserve the right to cancel a pre-booked period of leave if they wish to do so. For example, it may be that business need requires that particular person to be present in the workplace at that certain time when it did not previously. If this is something that an employer wishes to do, it needs to provide notice that is at least the amount of the leave that was to be taken. For example, if the employee was to take a week off work, they should be provided one weeks’ worth of notice to cancel it. It is important to remember that this is likely to not be popular with staff and could serve to be damaging to the ongoing employment relationship.
In normal circumstances, if cancelling pre-booked leave results in financial loss for an employee, they may even pursue a claim for constructive dismissal. While this may be unlikely in the coronavirus outbreak due to ongoing global travel bans and compulsory hotel closures, staff may still wish to use pre-booked time to spend with their family. Instead of cancelling the leave, consider whether a compromise could be reached with staff. Could they only work for part of a day and take the time back in lieu at a later date? Do they need to work on any specific days, or could they only take part of their leave instead of the full amount?
Leave while on furlough
For staff who are placed on furlough, statutory minimum annual leave entitlement will continue to accrue because the contract of employment is still in existence. In response, employers may want to agree that contractual leave in excess of the statutory minimum does not accrue; however, this may present a blocker to obtaining employees’ agreement to be furloughed.
Recent Government guidance confirms that furloughed staff can take annual leave; however, they need to be paid in full for this leave and employers will only be able to claim 80% of their wages through the scheme. Employers may wish to let staff use leave now to avoid large amounts of leave being left to take when they return from furlough. Staff may also wish to request leave in order to be paid in full for a period. Ultimately, as usual, it is down to the employer if they permit staff to take leave; it may not be possible for them to fund the remaining 20%. Government guidance published on 13 May 2020 confirmed that an employer can require a worker to take leave during furlough (subject to normal notice requirements). However, the employer should consider whether the purpose of annual leave, ie rest, relaxation and enjoyment, can be achieved where there are restrictions on the employee, eg during lockdown. However, as lockdown begins to be eased, it would be harder for a worker to claim that their annual leave could not serve the fundamental purpose.
The ongoing coronavirus situation is difficult for everyone and it currently remains unclear how long it will last. To this end, it is advisable to maintain open communications with staff, including updates on how they will be able to take their leave alongside all steps the organisation is taking to combat the spread of the virus. The right of workers to carry over leave, as set out above, into the next two leave years will certainly help ease any bottleneck towards the end of the leave year.
Last reviewed 14 May 2020