When can annual leave be carried over due to the coronavirus crisis?

To provide employers and employees with more flexibility in relation to annual leave requests, the Government has amended the Working Time Regulations 1998 (SI 1998/1833) to allow workers to carry over up to four weeks' annual leave into the next two holiday years, where it has not been reasonably practicable for them to take it as a result of the effects of coronavirus (COVID-19) (this includes the effects on the worker, the employer, the wider economy or society).

The amended Regulations would cover, for example, the situation where the employer does not allow an employee to take annual leave during the crisis due to an increased workload or lack of cover. However, where an employee chooses not to take leave because they are unable to go on holiday due to travel restrictions, this is arguably not a situation where it is not reasonably practicable for them to take it. The Government has published guidance on Holiday entitlement and pay during coronavirus (COVID-19), which includes guidance on factors to consider when deciding what is reasonably practicable.

Where employees were furloughed, the employer was required to pay them at their normal full rate of pay for a period of annual leave, rather than any reduced furlough rate. Therefore, employers may have decided to refuse requests for annual leave from furloughed employees where they could not afford to top up the employee's pay. In this situation, the employee should be allowed to carry over up to four weeks' leave, if it is not reasonably practicable for them to take it during the leave year.

Case law has established that the purpose of annual leave is to enable employees to rest from carrying out work and enjoy a period of relaxation and leisure (KHS AG v Schulte [2012] IRLR 156 ECJ), so an employee may argue that they should be allowed to take their annual leave after the furlough period, carrying it over if necessary. The government guidance on holiday entitlement during coronavirus states that employers should consider if "restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time". Ultimately, it will be for tribunals and courts to decide whether an employee should be allowed to carry over leave under the amended Regulations. The safest option may be for employers to allow employees who were furloughed to carry over annual leave that they did not take while furloughed and that it was not reasonably practicable for them to take before the end of the leave year.