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Revised rules on holiday carry-over don’t fully resolve employer’s concerns (UK)

Hot on the heels of my piece about the inevitable build-up of holiday entitlements thwarted by the Coronavirus comes the announcement by the Government that the Working Time Regulations are to be amended to allow the carry‑forward of up to four weeks holiday from 2020 to be taken over the following two years.

The Working Time (Coronavirus) (Amendment) Regulations 2020 are a gallant attempt to defuse the tension between strict Government instructions to stay home and shut everything on the one hand, and the WTR prohibition on carrying forward much of your minimum holiday on the other. It seeks to mitigate the pressure to cram all one’s accrued leave into the last months of 2020 to the immediate and obvious cost of an economy then hopefully on the path back to a semblance of good health.

The intended regulations do certainly mean that employers can now take a slightly firmer view on rejecting holiday requests over that period, because the employee is no longer in the same danger of losing his holidays if he doesn’t take them right now. It is kicking the can down the road to some extent, but that is something to worry about when we have less to worry about.

However, a number of brief thoughts:

First and primarily, the ability to salvage something from 2020 by taking extra holiday in 2021 and 2022 is all very well in theory, but it will not address the urgent physical and psychological need which we will all have for a change of scene and mood by the time lockdown ends and travel restrictions are lifted. The likelihood of this measure making much difference to the number of holidays people want to take or when is therefore very limited. Employers are definitely not out of the employment relations woods on this one just yet.

Second, would it be appropriate to ask how these new provisions about carry-over can be squared with the (so far as I know) un-amended Working Time Directive which has traditionally frowned upon the practice in all but the most obvious cases where maternity or sickness leave makes it impossible to do otherwise? In Brexit-speak, is this an early attempt to “take back control” of our own laws? If so, it seems less than likely that anyone in a European Union ravaged by the Coronavirus is really going to care.

Next, the BEIS announcement (which is not yet law nor necessarily either complete or a fully accurate reflection of the finished product) refers not to all employees, but only to those “who have not taken all of their statutory leave entitlement due to Covid-19”. That is obviously going to be easy to assert, but the announcement leaves unanswered the question of how it would be determined in case of dispute. Again, as for much of this torrent of ad hoc emergency legislation, you are left with the pronounced feeling that the authorities are not going to be too bothered to audit individual cases if no one complains. It would in any case be a pretty bold claim by most employees at the moment that the reason they didn’t take their holiday was unrelated to the Coronavirus.

Last, to balance that, there is no requirement in the announcement that the virus should have made taking holidays impossible, merely that it is the reason why they weren’t taken. It is possible in our view for the employer to allow or compel the taking of holiday during a lay-off, for example, and certainly the fact that an employee taking leave in lockdown could go nowhere, see no one and do nothing does not mean as a matter of law that he can’t be on holiday. As anyone travelling with other people’s children will know, there is sadly nothing in the Working Time Regulations which requires holidays to be either restful or enjoyable. Despite the clear ability of people to take legal (as opposed to actual) holiday, we imagine that the required burden of proving that holidays were not taken for Coronavirus reasons will be a low one.

© Copyright 2020 Squire Patton Boggs (US) LLP

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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
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Following ten years at a Magic Circle firm, David has been Head of our London Employment practice since 1994. His expertise gained from twenty-five years as a specialist Employment Law practitioner covers a wide variety of employment-related issues, including in particular individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding...

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