Amendments to the Working Time Regulations - carrying over leave not taken due to coronavirus

In light of the impact of the coronavirus, the Working Time (Coronavirus) (Amendment) Regulations 2020 (“the 2020 Regulations”) have been brought into force with immediate effect. The 2020 Regulations amend the Working Time Regulations 1998 (“WTR”) and ease the requirements on businesses to ensure that workers take their annual leave in any one year.

Under Regulation 13 WTR, almost all workers are entitled to a minimum of four weeks annual leave each year. Regulation 13(9) WTR provides that this leave may only be taken in the leave year in respect of which it is due; it may not be replaced by a payment in lieu except where the worker’s employment is terminated.

However, the 2020 Regulations have introduced two exceptions to this rule:

1. Where it is not “reasonably practicable” for a worker to take some or all of the leave to which the worker is entitled as a result of the coronavirus (including on the worker, the employer and the wider economy or society), the worker shall be entitled to carry forward this leave; and
2. This leave can be carried forward and taken into the two years immediately following the leave year in respect of which it was due.  

The 2020 Regulations also limit an employer’s ability to refuse an employee taking leave on a particular day. Under the WTR, employers were able to require a worker to not take leave on a particular day provided notice is given in accordance the WTR. However, the 2020 Regulations introduce the new provision that employer’s will only be able to refuse leave where the employer “has good reason to do so” (Regulation 13(12)).

Note that these changes do not apply to the 1.6 weeks annual leave granted by Regulation 13A WTR which can be carried forward one leave year (but not further) through an agreement between workers and their employers.

Under the WTR, there is an obligation on employers to ensure their workers take their statutory entitlement in any one year and failure to do so could result in a financial penalty. These changes will ease the requirements and will help to ensure all employers affected by coronavirus have the flexibility to allow workers to carry over leave at a time when granting annual leave could leave them short-staffed.

For further support and advice relating to the impact of COVID-19, please view our COVID-19 Advisory Service page.