Managing annual leave over Christmas

There are various challenges to overcome when managing annual leave over Christmas – whether your annual leave year runs from January to December, or April to March, or some other 12-month period!

Christmas often means an influx of annual leave requests and the headache of coordinating the Christmas rota in 2021, of course, is no exception. With this in mind, here’s some helpful guidance to help you prepare for the 2021 festive season.

Can an employer insist that an employee takes annual leave at a certain time?

Employers can inform staff that they need to take leave at certain times of the year such as during a Christmas closure. Best practice would be to communicate any periods when you require a worker to take annual leave at the beginning of the holiday year. If you don’t, some staff may not have sufficient leave left to take the time off as paid leave.

As a minimum, employers must give a worker notice if they require them to take holiday. The required notice period is double the length of the holiday if the employer wishes to require a worker to take holiday on particular days

Best practice would be to give in excess of the minimum and give as much notice as possible.

Do employees have the right to take annual leave over Christmas?

Nothing about these last two years have been normal. Some businesses traditionally see extra demand for their products and services over the festive period. Some businesses maybe trying to recoup income after the periods of lockdown. Either way, employers are legally entitled to restrict when staff take annual leave. It’s important to ensure all workers are aware of your leave policy over the Christmas period.

Unless a contract of employment states anything different – an annual leave request is exactly that – ‘a request’.

Remember that employers must always give as much notice as the amount of leave requested when accepting or refusing a request. For example, you should give two weeks’ notice if the leave requested was for two weeks.

Managing annual leave

Especially if Christmas is traditionally your busiest time of year, it’s a good idea to plan ahead. Communicate with staff to ensure they are booking their annual leave at regular periods throughout the year. Whether you have a self-service application, a spreadsheet or paper-based forms, managers need to monitor how many annual leave days their workers have left to take.

Carrying over annual leave into future leave years

The 5.6 weeks (28 days for a full-time staff member) of statutory holiday is divided into 4 weeks and 1.6 weeks.  There are different rules that apply:

• The 1.6 weeks can be carried forward into the following leave year if a written agreement exists between the worker and the employer
• Generally, the four weeks cannot be carried into future leave years, so employers must facilitate these weeks being taken within the relevant leave year

Some workers may have contracts that give them additional paid annual leave in excess of the 5.6 weeks. The 4 weeks that cannot be carried over into future leave years still applies.

There are some circumstances when employers must allow the four weeks to be carried over into the next leave year. This is when a worker cannot take annual leave due to sickness or maternity leave for example. These rights are not impacted by a worker having been on furlough.

New legislation on carry over in response to Covid-19

Last year, the Government passed new emergency legislation to ensure businesses have the flexibility to respond to the pandemic and to protect workers from losing their statutory holiday entitlement (The Working Time (Coronavirus) (Amendment) Regulations 2020).

This is still in effect, meaning workers can carry forward annual leave where the impact of Covid-19 means that it has not been ‘reasonably practicable’ for the worker to take some or all of the four weeks’ leave. The untaken amount may be carried forward into the two following annual leave years. It is important that when an employer is calculating how much annual leave a worker can carry over, they give the worker the opportunity to take any leave they cannot carry forward before the end of the holiday year.

Employers must still try to allow the worker to take as much leave in the year in which it relates. Also, give the worker the opportunity to take annual leave as soon as possible once it has been carried over.

The Working Time (Coronavirus) (Amendment) Regulations 2020 – what is reasonably practicable?

The new legislation sets out factors that an employer must consider when deciding whether it was ‘not reasonably practicable’ for a worker to take annual leave as a result of Covid-19 and can therefore carry it over into future leave years. The factors to consider are:

• Whether the business has faced a significant increase in demand due to coronavirus 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 the coronavirus 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, to enable the worker to take holiday at a later date within the leave year
• The extent to which the worker taking leave would impact on wider society’s response to, and recovery from, the coronavirus situation
• The ability of the remainder of the available workforce to provide cover for the worker going on leave