Employers need to establish a “good reason” for requiring annual leave to be taken by anyone during the current lockdown “emergency period”. Here is why.
In normal times
Under the Working Time Regulations (WTR), employers have been pretty free to dictate when and length of any holidays are taken. There is no minimum block of leave required. They need only to give their workers a period of notice that is twice the length of leave required e.g. requiring, say, 3 days’ leave to be taken requires 6 days’ advance notice.)
During the emergency period
Under the amended WTR, an employer should give careful thought to what is the good reason to impose annual leave right now. (See below for legal explanation.) Avoiding everyone building up accrued annual leave is instinctively a good reason, but if the ability to agree carry over has not been factored it then it may not be.
… who don’t object to taking annual leave
If a passive employee raises no objection to taking, and accepts full pay for, annual leave during the emergency period, then they will likely be taken to have consented. It will usually be very difficult for that employee later to complain this was not properly regarded as the agreed taking of annual leave.
… who object to taking annual leave
Where, however, an employee refuses to take annual leave during the emergency period, employers should offer the employee chance to agree that the annual leave can be carried over into the next 2 leave years. If the employee refuses, the employer may more easily establish the short term management of the business was good reason for insisting on holidays being taken now.
Employers may prudently assume that annual leave cannot be taken at the same time as a worker is on furloughed leave. (For brevity, we won’t go into reasons why. However, it should also be noted that bank/public holidays may be an exception to this. We won’t know until the Coronavirus Job Retention Scheme is finally published.)
The legal explanation when you have time
The WTR have been amended in respect of a worker’s first 4 weeks of annual leave. (4 weeks is EU minimum annual leave and excludes the 1.6 additional weeks provided by UK.) The key provision is to allow such leave can be carried forward into the two next leave years. This does not permit the employer to insist it is carried over if the employee does not want to do so. It permits an agreement to carry over that is normally be unlawful.
The further important detail includes this:
Regulation 13(10): “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), the worker shall be entitled to carry forward such untaken leave.”
Regulation 13(10): “An employer may only require a worker not to take leave to which paragraph (10) applies on particular days as provided for in regulation 15(2) where the employer has good reason to do so”.
What does this mean? What if the employer doesn’t want to agree to carry over?
In addition to the WTR, dictating when holidays must be taken is subject to implied contractual obligations on the employer to behave reasonably. Taking this into account if necessary, the reference to ‘particular days’ may be capable of being interpreted to mean that non-furloughed workers also cannot be required to take leave during the emergency period, unless the employer has good reason to impose that requirement.
The reasoning? “You must take 1 week’s holiday in [May] notwithstanding you may be restricted during the emergency period” may be argued to be the same as “You cannot take 1 week’s holiday during days from [June onwards] that are particularly described as being in the post-emergency period”.)
Of course, it may be argued that it could more explicitly and simply have been written into the regulations that workers cannot be required to take annual leave during the emergency period. However, that would require further details about when and how agreement to take annual leave could be reached and, frankly, nothing about annual leave is ever simple.
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