COVID-19: Daily update – Monday 6 April 2020

The Working Time (Coronavirus) (Amendment) Regulations 2020

On Friday 27 March the Secretary of State introduced new regulations to address employees and workers who will not be able to use their annual leave entitlements over the coming months due to the impact of Coronavirus.

Section 13 of the Working Time Regulations 1998 (WTR)establishes a four-week minimum holiday entitlement which must be taken each year. These four weeks are transposed from the EU’s Working Time Directive and are intended to ensure that all workers have time to rest during the year. As such a worker cannot receive payment in lieu of this time unless the employment terminates and this time is not usually allowed to be carried over to following years unless the worker is prevented from taking it due to sickness or maternity leave. Under section 13A of the WTR domestic law goes further by granting an additional 1.6 weeks annual leave which can be carried over to the following year if agreed with the employer.

The Working Time (Coronavirus) (Amendment) Regulations 2020 (the Regulations) amends section 13 of the WTR to permit the worker to carry over any of their minimum four-week annual leave entitlement for up to two years where it is not reasonably practicable to take that leave because of the effects of Coronavirus. Though sickness from Coronavirus would already entitle workers to carry over untaken section 13 leave the explanatory note accompanying the Regulations sets out a broader interpretation of ‘effects’ which includes economic impacts. Further insight into the purpose of the Regulations can be gained from the gov.uk announcement which seeks flexibility for employers in essential businesses who may find themselves short-staffed if forced to comply with annual leave obligations.

The Regulations do not affect the additional 1.6 weeks granted by 13A which will continue to be subject to contractual agreement with the employer. Where workers have already taken 20 day’s annual leave in the business’ holiday year, including public holidays, they will not be entitled to carry over any additional leave entitlement without agreement.

Advice: The Regulations will have a particular impact on essential businesses such as utility companies and medical service providers where their holiday year is set to end in the next few months. Workers in key businesses such as these may find that it is not reasonably practicable to take their accrued annual leave while the public is so dependent on them and so would be entitled to carry over these untaken days. It may be that the impact of the Coronavirus begins to fade after a few months and so where a business’ holiday year ends later in 2020 it may be difficult to argue that carrying annual leave over is reasonable. Any employer that does find it necessary to carry days over should ensure the details of this are properly recorded.

For more information, please contact our employment team.

Claire Knowles – Partner

Mark Alaszewski – Associate

Rebecca Mahon – Solicitor

Amelia Wheatstone – Solicitor 

Adam McGlynn – Trainee Solicitor

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