COVID-19: CAN ANNUAL LEAVE BE ENFORCED?

  • April 22, 2020
 

COVID-19: CAN ANNUAL LEAVE BE ENFORCED?

We are in uncertain times, many employees/workers will want to cancel their annual leave as they are unable to go anywhere however this may contradict the commercial needs of an organisation who may wish annual leave to be taken during this period.  

It is likely that businesses will experience a significant increase of commercial activity post lockdown, if employees/workers choose to take holiday during this period this could directly contradict the employers need for staff.

Under normal circumstances, the relationship between the employer and employee is governed by the contract which may be varied in certain limited circumstances by statute. In the absence of express contractual provisions regulating the relationship between parties, the current statutory position is set out below.

Does an employer have a right to tell employees and workers when to take holiday?

An employer can choose when an employee/worker can take annual leave, however sufficient notice needs to be given. Generally speaking, an employer needs to give twice as much notice as the amount of holiday being taken. For example, if an employer wishes the employee/worker to take 7 days holiday, 14 days’ notice to the employee needs to be given

If the employee/worker has already agreed annual leave with an employer and now wishes to revoke this, they will need to get a written agreement from their employer, but they may not necessarily agree to this. If an employee/worker has a holiday booked off at the end of the year (for example 10 days) and business has picked up by then, the employer can choose to revoke this agreed holiday request. However, the employer would need to give the employee/worker 20 days’ notice (twice as much notice).  

Employers should only consider revoking their agreement to approved annual leave, if the circumstances are reasonable however, what is “reasonable” is yet to be determined. As an example, it may not be reasonable to withdraw their agreement when an individual has spent substantial amount of money on a holiday which cannot be recoverable, in turn, causing a loss to the worker/employee.

Can an employee or worker carry annual leave over due to the COVID-19 pandemic?

According to the most recent Government guidance, employees/workers are now legally permitted to carry over up to 4 weeks basic holiday entitlement into the next 2 leave years, where at the end of the year it has been “not reasonably practicable” for them to take this leave “as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society)”.  

An employer may not object to this, as it may suit the commercial needs of the employer for a staff member to be working (for example, where business has picked up dramatically post lockdown). These measures are designed at relieving pressure on organisations where many employees/workers have no other option than to take annual leave at once. Business demand could also be a favourable reason for an employee/worker where it is “not reasonable practise” for them to take leave.

Other factors may be where an employee/worker had to self-isolate due to having COVID -19 or that they were “laid off” or on “furlough leave”. There is still little certainty as to how furlough leave and annual leave fits together, however the guidance indicates that annual leave will continue to accrue whilst being on furlough leave as an employee is still on an employer’s payroll. Guidance from the Government indicates that an employee/worker is permitted to take annual leave during furlough leave and similarly an employer can ask employees to take leave but this must be paid at 100% of the normal salary/pay rate (if pay has been reduced as a result of furlough).

Disclaimer: This has been prepared with the intention of providing general information on the changes in law. We accept no responsibility for errors it may contain, and the coverage of the topic is not comprehensive. You are advised to consult .gov.uk with any specific enquiries on the topic addressed.