Who decides on carrying-over holiday entitlement?
The Regulations do not require any prior agreement between an employer and employee that it was not reasonably practicable for holiday to be taken for it to be carried over.
However, if an employee requests holiday then an employer must have ‘good reason’ for refusing it due to coronavirus. The term ‘good reason’ is not defined so the Government will expect employers, employees and (if necessary on any dispute) the Courts to apply common sense.
The Regulations are not confined to key workers so could, in principle, be used by employers for a wider range of employees.
The Government guidance suggests that the following factors should be taken into account when considering whether it was reasonably practicable to take the leave in the relevant year:
- Whether the business has faced a significant increase in demand due to COVID-19 that would reasonably require the worker to continue to be at work and cannot be met through alternative practical measures.
- The extent to which the business’ workforce is disrupted by COVID-19 and the practical options available to the business to provide temporary cover of essential activities.
- The health of the worker and how soon they need to take a period of rest and relaxation.
- The length of time remaining in the worker’s leave year.
- The extent to which the worker taking leave would impact on wider society’s response to, and recovery from, the effects of COVID-19.
- The ability of the remainder of the available workforce to provide cover for the worker going on leave.
Related FAQs
Workers who have not taken 20 days holiday entitlement due to Covid-19 can now carry it over into the next 2 leave years. It only applies where it was not reasonably practicable for a worker to take their annual leave due to the coronavirus.
Yes. Government guidance now confirms that employers can be required to take holiday during a period of furlough, so long as they are given minimum notice to do so. The notice required is double the length of the holiday.
Employers are also able to cancel employees’ holidays (or require them not to take holiday) if they are on furlough, for example if they are not in a position to pay the additional 20% top up to their normal wages (or more where they earn in excess of the £2,500 monthly cap on furlough payments). Again, employers are required to provide a minimum period of notice of cancellation, which in this case, is the length of the planned holiday.
Employers can ask employees to take or cancel holiday with less notice but they would need to get their agreement to do so.
Government guidance has been updated to state that “Employees should not be placed on furlough for a period simply because they are on holiday for that period.” If a period of furlough happens to coincide with an employee’s holiday then you should ensure that there are business grounds to support furlough being used in that instance so that it isn’t just being used as a means to fund holiday utilisation.
Failure to comply with the individual consultation obligations could render the dismissal unfair and expose you to a financial penalty of the lower of up to 1 years gross pay or the maximum statutory limit (currently £88,519).
Maintenance Orders embodied in a Court Order are variable. If you have lost a very large part of your income, then the Courts ought to take that into consideration when looking at a Court Application to reduce or end spousal maintenance payments. The outcome of any Court Application will, however, depend on a number of factors.
Technically, you should not just stop paying or reduce the maintenance payments, as your ex-spouse could then make an Application to Court for enforcement and payment of the arrears. You could ask the Court to forego you having to pay those arrears if you had evidence to prove that you could not make the payments, however, the Court will need to take a fair approach and you should not assume this request will be agreed.
You should first try to negotiate a reduction or termination of the maintenance with your ex-spouse, either directly or through a Solicitor. If this is possible, you should obtain a Court Order reflecting that agreement. Where a sensible compromise cannot be reached, a Court Application may be necessary.
Changing to shift working may give employers the opportunity to change hours / pay whilst also focusing work when it is needed. Like the other provisions, this should be done fairly, either across the board or by selecting teams/individuals based on objective business reasons. Imposing without agreement would create significant risk, therefore would require fair selection and consultation.