Coronavirus and untaken holidays

The Working Time Regulations (NI) 2016 provide all workers with a maximum statutory entitlement of 5.6 weeks or 28 days of holiday each year. This entitlement includes bank holidays and is worked out on a pro-rata basis for part time workers. Most of this entitlement cannot be carried over between leave years. If a worker is on sick leave what happens to the annual leave they have not been able to take before the end of the leave year?

In Great Britain, the Working Time (Coronavirus) (Amendment) Regulations 2020 came into force on 26 March 2020. These Regulations provides for some, or all of, the four weeks’ statutory annual leave (provided for by EU law) to be carried over for a period of two years, where it was not reasonably practicable to take some or all of the statutory leave as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society).

While it is unclear what circumstances are covered by the term “not reasonably practicable”, it is widely drafted. Guidance in Great Britain, which is provided by ACAS, suggests that the following mean that it was not reasonably practicable for the worker to take the leave:

• Where they are self-isolating and too sick to take holiday before the end of their leave year.
• Where they are laid off or are on furlough leave.
• Where they have been required to continue working and could not take paid holiday.

Where a worker is entitled to additional contractual leave the employer may argue that as the annual leave is contractual they do not have a right to carry this over. There is case law which has held that an individual's holiday entitlement must be considered a "composite whole", with each day's leave consisting of entitlement under all sources taken together.

The worker should therefore assert that the holiday leave they were unable to take is the statutory four weeks leave and that they should be allowed to carry it over for a period of two years on the basis that the reason they were not able to take it was because they took sickness absence as a result of the effects of coronavirus. If the employer does not agree the worker should lodge a grievance. Where the union is recognised it may be possible to negotiate a collective resolution on how leave may be carried forward.

To bring the legislation in Northern Ireland in line with that of Great Britain, the Economy Minister Diane Dodds, has proposed to amend the Working Time Regulations (NI) 2016 to likewise allow workers in Northern Ireland unable to take holiday leave as a result of the COVID-19 outbreak to carry over their annual leave to the next two leave years.

View Thompsons Solicitors coronavirus (COVID-19) update here: https://www.thompsons.law/news/news-releases/our-firm-news/thompsons-solicitors-coronavirus-covid-19-update