CP Law Associates

Carrying over annual leave for two years

On 27 March 2020, there was an amendment to the Working Time Regulations and it is worth looking at this again, now that we are in a second lockdown.

The amendment means that employees who were unable to take any time off during the COVID 19 pandemic, are able to carry over their annual leave for two years. The change will apply to all workers, including agency workers, those who work irregular hours and workers on zero hour contracts.

This change is aimed at giving businesses who are under a lot of pressure from the impacts of COVID 19 and will also give a larger amount of flexibility for businesses that need to be able to better manage their workforce but to also ensure they are able to protect their workers rights to receiving paid holiday.

The previous position on annual leave

Before the changes the Working Time Regulations of 1998 (WTR) stated that:

  1. Under the WTR, workers are entitled to 5.6 weeks’ paid annual leave per year (pro-rated for part time employees). This is made up of 4 weeks required under European law (Basic Leave), and an additional 1.6 weeks permitted under domestic legislation (Additional Leave). Some employees are entitled to more holiday under their contracts of employment.
  2. The WTR provides that workers must use their 4 weeks’ Basic Leave entitlement in the leave year in which it is due, otherwise the entitlement will be lost. The 1.6 weeks’ Additional Leave can be carried forward into the next leave year if there is a “relevant agreement” (for example, it is provided for in an employment contract) or with an employer’s agreement. This is subject to exceptions in relation to maternity and sickness cases.
  3. Employers are also under an obligation to give workers an effective opportunity to take holiday in the leave year in which it accrues.
  4. Under the WTR, it is not possible to make a payment in lieu of accrued statutory holiday entitlement except on termination.

Why have the Government made the changes?

The change announced by the Government is aimed to support those key industries including the likes of NHS staff or carers who have had their annual leave cancelled to concentrate on caring for the sick and vulnerable. However, employers do still have the right to refuse permission for a worker to take their leave on particular days e.g holiday requests must still be provided by an employee.

If a worker has their employment or engagement terminated during that two year period, any payment in lieu of holiday must include a payment in lieu of holiday carried over under these provisions.

Do you think you are being unfairly treated with this announcement?

Do you think you are being treated unfairly at your place of work?Have you been unable to take holiday but have not been spoken to about carrying over annual leave for two years?  Our highly trained team of lawyers will be on hand to provide advice if you believe you are being treated unfairly.

Find out more on our employment law page.

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