Annual Leave Carry Over?

laticsforlife

Hoping someone out there is a bit of a wizz on Annual Leave and Covid.
The law was changed under WTC Reg 13 for 2020 to say a worker could carry over unused Statutory Leave for 2 years.
Statutory Leave being 20 days plus 8 Bank Holidays.  This was if they couldn't use them due to Covid.  Most will have had no choice re: the 8 Bank Holidays as pretty much automatic.

But what if your employer actually gives you 25 or 30 days annual (plus those 8 days).  Said employer also generously allows you to always carry over 10 days unused (not cumulative, so you can't keep saving for years on end).

Lets say your foreign holiday was cancelled due to not being able to travel, so you have unused days from 2019/2020 but what with keeping sane, you've actually taken 23 days proper annual leave, leaving you with 7 from 2020/21 plus 10 you brought with you from 2019/20 (where your leave year is somewhere in the middle of the year).  So you've got 17 now, and are about to lose 7 of them if the employers rules are followed to the letter.
But the question is how do you count which leave you have used first - is it the brought forward from last year or is it the Statutory Leave, or is it a proportion based on the total of all these.

General_Grant

laticsforlife said:

Hoping someone out there is a bit of a wizz on Annual Leave and Covid.
The law was changed under WTC Reg 13 for 2020 to say a worker could carry over unused Statutory Leave for 2 years.
Statutory Leave being 20 days plus 8 Bank Holidays.  This was if they couldn't use them due to Covid.  Most will have had no choice re: the 8 Bank Holidays as pretty much automatic.

But what if your employer actually gives you 25 or 30 days annual (plus those 8 days).  Said employer also generously allows you to always carry over 10 days unused (not cumulative, so you can't keep saving for years on end).

Lets say your foreign holiday was cancelled due to not being able to travel, so you have unused days from 2019/2020 but what with keeping sane, you've actually taken 23 days proper annual leave, leaving you with 7 from 2020/21 plus 10 you brought with you from 2019/20 (where your leave year is somewhere in the middle of the year).  So you've got 17 now, and are about to lose 7 of them if the employers rules are followed to the letter.
But the question is how do you count which leave you have used first - is it the brought forward from last year or is it the Statutory Leave, or is it a proportion based on the total of all these.

No.  Statutory leave is 5.6 weeks and that equates to 28 days for someone working 5 or more days a week.  Bank Holidays are not automatically part of statutory leave (otherwise nobody would work on a bank holiday).  It is true, however, that the UK had an extra 8 days added to the 20 which were due under the EU law because of the, usually, 8 bank holidays.

Your statutory entitlement should be deducted first.

laticsforlife

General_Grant said:

Your statutory entitlement should be deducted first.

That's what I was looking for confirmation on, the priority of usage.  The 2 cases in the Courts (one Scottish, one Northern Irish) have opposing answers (helpful!).

Therefore if I understand it I've used only 3 of my brought forward and will be forced to get down to 10 by year-end is what you are saying.  I can't say (like in the NI case) that every days leave is proportionally part Statutory and part Contractually, as if I applied that logic/maths I'd have only taken 13 or so Statutory days so could carry the excess under Reg13 for 2 years.

Barny1979

OP, were you furloughed? If not, then you haven't been affected by Covid. That is the stance of my employer, only very frontline staff who ended up working weekends and BHs at the height of Lockdown 1.

Barny1979

To add, my place of work we can carry 5 days over into the next holiday year, but these have to be used in the first 6 weeks of the new year, so would presume your employer's leave policy will indicate that the 10 you carry over are used up first.

getmore4less

It shouldn't really work like that the statutory requirement is just that a requirement that you get at least that many days within a holiday year they are not particular set of days from a bigger list of days

The law has law always allowed carry over and the new rules are just a bit more generous in that you can take fewer days than 5.6 weeks and still meet the statutory requirement.

typically places  use a first in last out. so carry over get used first and they can count as days towards meeting the statutory requirement. once you reach the minimum the obligations are met.

The law allows the carry over but it is still at the employers discretion unless they don't allow you to use them then they have to carry over.

The issue is will your employer let you carry over more than 10 days if they don't let you take enough to get to 10 days left from the carry over and new allocation.

Furlough is not really relevant as employers could have had you take holiday while on furlough  it is really about why you have too much left and it is the employers fault for net letting you take enough if it is they should let it carry.

getmore4less

to add the previous provision allow for 1.6 weeks(8 day) carry over  from the 28 days, the one year restiction still applies to those.

the other thing to remember is 13.12
the employer should where possible use up the leave it is not up to the employee to want to carry it over if it can be used it should.

(12) An employer may only require a worker not to take leave to which paragraph (10) applies on particular days as provided for in regulation 15(2) where the employer has good reason to do so.

If you can take it you should and the employer is obliged to try to make that happen.

getmore4less

Going to come at this from a slightly different angle.

it could be argued that any carry over of statutory is to be used first and does not count towards this years obligation for statutory leave.
then with a 10 day carry over up to 8 can be statutory but depending on allowance could be less(would require min allowance of 30 days total)
for the 25+BH(33days)   6 would be statutory days carried over leaving 4 to go towards this years  
for the 30+BH(38 days) 0 would be statutory days so all go towards meeting this years statutory obligations.