COVID-19: Amendment Working Time Regulations
To allow for carry-over of leave untaken due to COVID-19
The Working Time (Coronavirus) (Amendment) Regulations 2020 SI 2020/365 have been made and brought into force with immediate effect. The new rule applies to the four weeks of annual leave provided for by Reg 13 Working Time Regulations (“WTR”). The regulations amend the Working Time Regulations 1998 by relaxing the previous restriction which prevented employees from carrying over untaken annual leave into the next leave year, now where annual leave has not been taken due to the COVID-19 pandemic. Employees can delay taking leave and the untaken leave can be carried over into the next two leave years. However the additional 1.6 weeks of annual leave provided for by Reg 13A, is not covered under these provisions and they remain subject to different rules on carry-over.
Regulation 3 of the 2020 Regulations amends Reg 13 WTR, which provides for the minimum four weeks of annual leave. Following amendment, two new paragraphs, have been inserted after Reg 13 (9). Reg 13(9) previously provided that the four weeks of leave may only be taken in the leave year in respect of which it is due and may not be replaced by a payment in lieu except where the worker’s employment is terminated. The new insertions are:
- Reg 13(10), where it was ‘not reasonably practicable’ for a worker to take some or all of his or her Reg 13 leave in the leave year as a result of the effects of COVID-19, including effects on the worker, the employer or the wider economy or society, the worker shall be entitled to carry forward such untaken leave.
- Reg 13(11) makes provision that the carried-forward leave may be taken in the two leave years immediately following the leave year in respect of which it was due.
The regulations at, Reg 4 of the 2020 Regulations amend Reg 14 WTR, to ensure that the calculation of a payment in lieu of leave can occur where the worker’s employment ends prior to the worker taking the leave.
The 2020 Regulations 13 (12), introduce a restriction on an employer’s right to refuse leave on particular days. Under Reg 15(2) WTR, an employer may require a worker not to take leave on particular days by giving the worker notice that complies with the formalities set out in Reg 15(3). Under the new Reg 3 2020 Regulations, the employer will be able to prevent an employee taking carried over leave when desired where the employer has ‘good reason’ to do so. The expression Good reason is not defined in the Regulations.
June joined Bates Wells & Braithwaite in 2015 and is a specialist employment law solicitor.
June has over 20 years of litigation and employment law expertise gained first in private practice and later in her role as an employment lawyer in a local authority in London where she dealt with highly complex tribunal cases including TUPE matters, sex, race and disability discrimination claims.
Outside of work June is a governor of a local sixth form college and enjoys a busy family life.