HOLIDAY LEAVE NOT USED IN 2020

CAN THIS LEAVE BE CARRIED OVER FOR 2YRS FOR ALL EMPLOYEES

Didn't find your answer?

ANNUAL LEAVE NOT USED DURING 2020 due to the COVID pandemic, can this leave be carried forward for 2yrs for ALL employees or only furloughed employees? Or is this at the employers discretion?

Replies (14)

Please login or register to join the discussion.

avatar
By Truthsayer
05th Nov 2021 15:33

This cannot be answered properly without knowing the terms of your employment contracts.

Thanks (0)
avatar
By David Ex
05th Nov 2021 15:37

I THINK THE EMPLOYER CAN DO AS THEY WISH SUBJECT TO CONTRACTUAL OBLIGATIONS. NOT AWARE OF OVERRIDING LEGISLATION.

Thanks (2)
avatar
By Paul Crowley
05th Nov 2021 15:56

Employer can allow anything he likes
But that could set a precedent that may not suit employer next year, so best to make clear this is a once off allowance

It would be peculiar that the people who performed no work are treated better than the stalwarts that worked and kept the business alive

Thanks (0)
Replying to Paul Crowley:
Routemaster image
By tom123
05th Nov 2021 16:00

But not uncommon.

Having worked (at the time) in a setting with half on furlough and half not, and then the holiday issue, there was plenty of resentment in both directions.

Of course when furlough started it was not supposed to go on particularly long, so holiday wasn't really considered.

Thanks (1)
avatar
By Leywood
05th Nov 2021 16:02

WHY DO YOU SHOUT ON EVERY SINGLE POST?

NOT AN ACCOUNTING QUESTION, ITS AN EMPLOYMENT LAW ONE. SPEAK TO ACAS.

Thanks (1)
Replying to Leywood:
avatar
By Mount_Gay
05th Nov 2021 16:07

Sincerest apologies for my elementary use of my keyboard.
Back to the Pitman Typing School for me.

PS - Thanks for the note on ACAS. I will give them a call.

Thanks (0)
avatar
By Mount_Gay
05th Nov 2021 16:04

Without attaching someone's contract, usually any unused annual leave from the current year is cleared off an not carried forward into the next holiday year.

However, HMRC published the following on Mar-27-2020.

https://www.gov.uk/government/news/rules-on-carrying-over-annual-leave-t...

Thanks (0)
Replying to Mount_Gay:
avatar
By Mount_Gay
05th Nov 2021 17:41

Thanks for the nudge - I found this at ACAS.

https://www.acas.org.uk/coronavirus/using-holiday

Thanks (0)
Replying to Mount_Gay:
avatar
By Hugo Fair
05th Nov 2021 18:04

You've broadly answered your own question via that link:

"The Working Time (Coronavirus) (Amendment) Regulations 2020 amends the Working Time Regulations 1998 to create a further exemption relating specifically to COVID-19.
Where it is not reasonably practicable for a worker to take some, or all, of the holiday to which they are entitled due to the coronavirus, they have a right to carry the 4 weeks under regulation 13 into the next 2 leave years.
This will not apply to the 1.6 weeks under regulation 13A leave, but this can be carried forward one year by agreement between workers and employers."

However the word 'right' in the guidance is potentially mis-leading in that these rules are still within the overarching Working Time Regs - and it is the 'use it or lose it' concept that is removed for the specified duration.
In other words, employees still need employer agreement etc.

Thanks (1)
Lisa Thomas
By Lisa Thomas - Insolvency Practitioner
09th Nov 2021 14:11

I had heard if the employer topped up the furloughed employees wages to 100% then they were not entitled to carry forward holiday...

Thanks (0)
Replying to Insolvency Practitioner:
avatar
By Hugo Fair
09th Nov 2021 18:58

Well I know your hearing is usually acute, but that's news to me ... as in I've neither heard it nor seen anything to back it up.
Do you have a source (legislation or guidance)?

What is definitely true, however, is that paid holiday could be taken whilst on furlough IF both ER and EE agreed this. And, in that scenario, any holiday had to be paid at the full rate (of holiday pay) - not just 80% of it.
But any entitlement remaining (after some or no holiday taken) can (unusually for now) be carried forward as per my previous post in this thread.

FWIW holiday entitlement is driven by the Working Time regs and is not directly allied to levels of earnings, so your premise makes no sense (to me at least).

Thanks (1)
Replying to Hugo Fair:
Lisa Thomas
By Lisa Thomas - Insolvency Practitioner
10th Nov 2021 09:07

A friend who owns their own business told me they had come across the law and applied it, but time has passed since and I may well be misremembering the exact nature of the situation.

I will ask them for their source.

Thanks (0)
Replying to Insolvency Practitioner:
Lisa Thomas
By Lisa Thomas - Insolvency Practitioner
10th Nov 2021 09:41

I have spoken to my friend and they advised me they relied on the info below for their source - their reading of it was: where only paid 80%, the employee was not able to take holiday, whereas if the employer topped up to 100% some or all of the extra 20% could be classed as holiday pay.

https://www.gov.uk/guidance/holiday-entitlement-and-pay-during-coronavir...

Thanks (0)
Replying to Insolvency Practitioner:
avatar
By Hugo Fair
11th Nov 2021 21:43

Sorry, was out for couple of days ... but although I'm not sure how to disprove your friend's interpretation, I'm going to go out on a limb and state they are wrong!

* "where only paid 80%" (or indeed anything less than 100%), then the employee (with ER agreement) can still take some of their leave entitlement as paid holiday ... BUT in those circumstances the ER must top-up the pay for the holiday days so that it equates to 100% (even though only 80% or whatever could be reclaimed via CJRS).
So strictly speaking, if the employee was only paid 80% the impact is not that he/she "was not able to take holiday" ... rather it was any holiday taken has been underpaid which is not allowed.
[Note: the reference to holiday pay being topped-up to 100% means to 100% of what employee is entitled to as at the date of the holiday for paid leave ... which may not be the same as 100% of normal full pay].

* Conversely, "if the employer topped up to 100%" ... the extra 20% could NOT be "classed as holiday pay", as the value of holiday pay has to be calculated correctly and cannot be randomly offset by things like a top-up.
In other words an employee could be on furlough and on holiday at the same time - the two states are not mutually exclusive.
[Note: as per previous point, ER could have paid employee the correct amount of holiday pay, whilst reclaiming less than this rate via CJRS].

The key to all this is that, as I said before, entitlement to paid holiday is defined by the Working Time Regs (including the variation to cope with Coronavirus) and has nothing to do with whether or not employee is on furlough.

That is not just my opinion, but in line with guidance from CIPD and ACAS et al.
Indeed the link you've provided doesn't contain anything that I can see to support your friend's assertion - but does say:

* "If a worker on furlough took annual leave, an employer must have calculated and paid the correct holiday pay in accordance with current legislation - see the standard guidance. Where this calculated rate was above the pay the worker received while on furlough, the employer should have paid the difference."
and
* "Workers who were furloughed are unlikely to have needed to carry forward statutory annual leave, as it would have been easier for them to take it during the furlough period (in most cases at least). However, they must have been paid the correct holiday pay which was likely to be higher than the rate of pay that was covered by government grants, with the employer making up the difference."

There's actually lots of useful info on that page, but it seems only to support what I've said rather than what your friend has managed to read into it.

Thanks (1)