Automatically transfer annual leave with an absence management solution. Employees or employees who are temporarily sent home because there is no work (“exempt workers”) may request and take their leave in the usual manner if their employer agrees. This includes public holidays. Published on December 3, 2020 One of the side effects of the coronavirus on employment has been a change in the rules for transferring annual leave. In certain circumstances, an employee may transfer a right to vacation of up to 4 weeks to the next two years of leave. But as always, the devil is in the details; In order to understand the permissible circumstances, it is first necessary to summarize the Working Time Ordinance 1998 (WTR). Sections 13 and 13A of the WTR provide that employees are entitled to 4 or 4 respectively during each year of leave. Have 1.6 weeks of annual leave – a total of 5.6 weeks or 28 days for a regular full-time employee. The 4 weeks under Rule 13 of the WTR are called the “basic right” and are derived from the EU Working Time Directive, while the additional 1.6 weeks under Rule 13A, called the “additional right”, reflect our usual public holidays (although an employee does not have the legal right to take annual leave on a bank or a public holiday despite the allowance for these public holidays, since his employer may require him to give B. the occasions when there is an express or implied provision in their contract). In general, the basic right of 4 weeks cannot be transferred from one year of leave to another, unless the employee is prevented from taking it due to illness or maternity leave. Although this has been the subject of extensive case law in recent years, it seems to be a fixed position for the time being – our national courts have recognised that the prohibition of temporary leave laid down in Regulation 13(9) of the WTR must be interpreted in accordance with EU law. With regard to the additional claim, on the other hand, it has always been true that it can be transferred if there is a corresponding agreement, for example an employment contract or collective bargaining clauses.

It should be recalled that the year of leave in question corresponds to the dates agreed between the parties or, in the absence of an agreement to that effect, to the period of 12 months from the employee`s start date and each birthday (in the case of employment beginning after 1 October 1998) or from 1 October to 30 September (in the case of employment, from or before 1 October 1998). The year of leave may therefore differ from one employer (and employee to another) and does not necessarily have to coincide with the calendar year. Employers must ensure that employees have the opportunity to take paid leave, while annual leave cannot be replaced by severance pay except at the end of the employment relationship. It is also noted that the fundamental purpose of the holiday is “rest, relaxation and leisure”. This posed a problem earlier this year when it was recognized that lockdowns and the pandemic could prevent workers from taking annual leave due to industry requirements or not receiving leave during lockdown or during periods when travel restrictions are in place. In response, the government introduced the Working Time (Coronavirus) (Amendment) Regulations 2020 (WT(A)R). The WT(A)R provides that if, during a year of leave, it was not reasonably possible for an employee to take some or all of the leave to which he or she was entitled under Article 13 of the WTR due to the effects of the coronavirus, that leave may be transferred and taken within the next two years. First of all, it should be noted that the WT(A)R only applies to the basic claim (4 weeks) – it does not apply to the additional claim (1.6 weeks) or another claim granted to the employee by his employer. Whether or not such leave can be taken is in most cases determined by the contract. Second, it should be noted that the WT(A)R does not apply to a basic claim that was “reasonably practicable” for work despite the “impact of the coronavirus.” The impact of the coronavirus is not directly limited to the impact on the worker (e.g. because he contracted the virus) or indirectly (for example, because he needs to take time off work to care for a family member who did), they encompass the impact of the coronavirus on the employer, the economy and society as a whole – a spectrum so broad that it is almost impossible not to meet the definition.

Sufficient practicability will therefore determine whether an employee has the right to present the fundamental right to annual leave under WT(A)R, i.e. under what circumstances could it have been “reasonably practicable” for an employee to assert his or her fundamental right during the year of leave in question? Any practical difficulties in taking leave caused by the coronavirus will not pass the test – cancellation of a stay abroad and lockdown (or strict restrictions) usually mean that it was not reasonably practical for an employee to take leave, just like leave without other factors. However, workers, particularly in key industries that have not been able to take a leave due to a permanent need for work, such as an exhausted workforce or increased demand, are more likely to claim it. Personal circumstances will also be relevant – a person living alone could argue that the obligation to self-isolate prevents them from truly benefiting from the fundamental purpose of the holiday; This can lead to discrimination if a transfer request is rejected by an employee with a disability under the Equality Act 2010 and argues that he or she has been prevented from taking leave because of his or her disability. The government`s guidelines set out several factors that employers should consider when applying the unreasonably viable test – bit.ly/39L82Iz. Acas proposed the following circumstances in which an employee might be able to transfer annual leave on the basis of WT(A)R: if the employee is self-isolated or too ill to take the leave before the end of his or her leave year; whether the employee was to continue working and could not take paid leave; and if the employee was placed on leave and could not reasonably use the leave during the year of leave. If an employee`s fundamental right to annual leave under WT(A)R is transferred in whole or in part to the next year of leave, it is fairer to allow the employee to take his or her entitlement to the leave, which initially expires in the new year of leave, since the transferred leave can be taken within two years of leave. Employers may need to review and review their contractual arrangements with employees if they prescribe an order in which to take advantage of the conflicting leave.

As regards the time when the transferred leave is taken, Article 15 of the WTR, which provides that an employer may require an employee to take or not to take statutory annual leave on certain days (provided that he informs at least twice as many days of the period of leave as of its duration, unless a relevant agreement provides for a shorter period), amended by the WT(A)R to prevent the employer from objecting to a request, a suspended leave, unless the employer has “good reasons to do so”. However, this still needs to be tested whether it is reasonably possible for an employee to take a leave of absence if their employer allows it. Nevertheless, employers and employees should endeavour to ensure that the leave is taken during the vacation year to which it relates. For more information on the holiday broadcast, please contact Matthew Rowlinson at E: mrowlinson@jacksons-law.com | T: 0191 206 9617 or another member of the employment team. Please share the article LinkedIn Facebook Twitter WhatsApp Annual leave is paid leave (PTO) granted to employees as a legal right. In the UK, almost all workers are legally entitled to at least 28 days – or 5.6 weeks – of paid leave per “year of leave”. This legislation ensures that workers who have not been able to take leave for “reasonably practicable reasons” related to the coronavirus can take up to four weeks of annual leave over the next two years of leave. This may be included in your employment contract, or it may be a normal practice that has built up over time.