WTR rules on carrying over annual leave relaxed

Workers who have not taken all their statutory annual leave entitlement due to COVID-19 can now carry it over into the next two leave years. This will allow leave to be taken some time in the following two years but only where the leave was not taken in this current holiday year as a result of the effects of COVID-19 on the worker, the employer or the wider economy.

The four weeks of annual leave granted by the Working Time Regulations 1998 (WTR), reg. 13 cannot generally be carried between leave years, except when a worker cannot take annual leave due to sickness or maternity leave. The 1.6 weeks of annual leave granted by reg. 13A can be carried forward one leave year (but no further) through an agreement between workers and their employers.

The Working Time (Coronavirus) (Amendment) Regulations 2020 amend the WTR to create a further exemption relating specifically to COVID-19. Where it is not reasonably practicable for a worker to take some, or all, of the holiday to which they are entitled due to the coronavirus, they have a right to carry the four weeks under reg. 13 into the next two leave years. This does not apply to the 1.6 weeks under reg. 13A leave, but this can be carried forward one year by agreement between workers and employers.

New regulations 13(10) and 13(11) provide that: 'where in any leave year it was not reasonably practicable for a worker to take some or all of the leave to which the worker was entitled under this regulation [13] as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society), the worker shall be entitled to carry forward such untaken leave’ to be ‘taken in the two leave years immediately following the leave year in respect of which it was due’.

Under new reg. 13(12) an employer may only require a worker not to take reg. 13 leave on particular days as already provided for in reg. 15(2) where the employer has good reason to do so.

The provision on payment in lieu of untaken holiday leave on termination also makes it clear that if termination takes place in one of the years into which leave was carried forward, any carried forward leave will need to be paid in full, with only the fresh holiday year entitlement for that year being subject to the pro rata formula.