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Holiday entitlement and pay during coronavirus

The Government has recently produced guidance regarding holiday entitlement and the pay during coronavirus. The guidance has perhaps come slightly later than most employers would have hoped but thankfully there are no real surprises and is primarily clarifying issues that were already known.

In many ways the guidance is a summary of other pieces of existing legislation regarding holiday entitlement and pay. The guidance in particular sets out the rights for employers to require workers to take holiday or cancel existing holidays. Whilst this right for employers already existed within the Working Time Regulations this guidance provides useful and easy to understand guidance which workers who may questions decisions taken by employers can be directed to.

The guidance does provide some useful guidance on the factors employers should consider about whether it was reasonably practicable for an employee to take leave as a result of the coronavirus and so they can carry untaken holiday into future years, these include:

• whether the business has faced a significant increase in demand due to coronavirus that would reasonably require the worker to continue to be at work and cannot be met through alternative practical measures;
• the extent to which the business' workforce is disrupted by the coronavirus and the practical options available to the business to provide temporary cover of essential activities;
• the health of the worker and how soon they need to take a period of rest and relaxation;
• the length of time remaining in the worker's leave year, to enable the worker to take holiday at a later date within the leave year;
• the extent to which the worker taking leave would impact on wider society's response to, and recovery from, the coronavirus situation; and
• the ability of the remainder of the available workforce to provide cover for the worker going on leave.

It also suggests that best practice is to allow workers holiday that expires first and as carried forward holiday does not expire for 2 years then employees should use up their normal holiday entitlement first before using the carried over holiday entitlement, however employers can request that workers use their carried over holiday entitlement provided the employee receives their full normal annual holiday entitlement on top of this. Workers who also leave employment whilst still having carried over holiday will be entitled to receive payment in respect of those dates upon termination.

Finally in respect of carried over holiday entitlement it sets out that this class of holiday entitlement has additional protections and an employer can only prevent a worker from taking holiday on particular dates must have a "good reason". What a good reason may be is not set out within the guidance but as it is very rare for employers to refuse workers taking holiday without a good reason, such as due to the requested holiday being at a busy time for the business or other staff who are already on holiday, so it is unlikely this will be much of an issue for most employers.

The full guidance can be found at: https://www.gov.uk/guidance/holiday-entitlement-and-pay-during-coronavirus-covid-19.

For more information contact James Barron in our Employment & HR department via email or phone on 0161 918 0017. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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