Carer employers: Understanding the law on annual leave

Employing a Carer or Personal Assistant throughout the Coronavirus pandemic and several stages of lockdown restrictions might mean that you had to put your employee on furlough. Even if your Carer has continued to work for you throughout the pandemic, the things they could do on their time off will have been really restricted. Both of these things mean that as we approach the end of the holiday year, your Carer or Personal Assistant might still have a large chunk of their holiday allowance unused.

As we approach the end of the holiday year, we have received the same sort of question many times from those employing carers and the services assisting them with their Direct Payments:

‘What if my Carer hasn’t taken all of their annual leave?’

‘How much holiday can my Carer carry over?’

‘Should my Carer lose their annual leave if they haven’t taken it?’

We asked Peninsula, the providers of our Employment Law and Health & Safety advice, to clarify what is allowed from an Employment Law point of view. Here’s what they had to say:

“All workers are entitled to take at least 5.6 weeks of leave per leave year, which is pro-rated for part-time staff. Whilst it is usually up to you if you permit them to carry 1.6 weeks of this into the next leave year, in normal times you must provide them opportunity to take at least four weeks per year.

The impact of COVID-19 may mean it is difficult for workers to take all their statutory annual leave entitlement because, for example, demand at work means that taking annual leave is not feasible.

In response, last year, the Government amended the Working Time Regulations 1998 to give workers the statutory right to carry over four weeks of annual leave into the next two leave years. Carrying over the remaining 1.6 weeks, and any additional leave your company provides, remains at your discretion.

A worker will be entitled to carry leave over in this way where it has not reasonably practicable for annual leave to be taken in the leave year to which it relates as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society).

This means that there is no automatic right to carry leave over and you will need to consider the ‘reasonably practicable’ element. For assistance, Government guidance was produced on 13 May 2020 which sets out that you should take account of various factors when considering whether it was not reasonably practicable for an employee to take leave:

• 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

The guidance also states that it would not be reasonably practicable for a worker to take annual leave whilst on furlough if you were not able to meet the requirement to pay normal pay.

You should do everything reasonably practicable to ensure that the worker is able to take as much of their leave as possible in the year to which it relates, and where leave is carried forward, it is best practice to give workers the opportunity to take holiday at the earliest practicable opportunity.

In the absence of the reasons for carrying over leave specified above, you will not be required by law to permit a carry over. For example, the guidance states that it is not likely that furloughed workers will need to carry leave over because of the ability to take annual leave during furlough. In this circumstance, it is advisable to regularly remind staff of the leave they have to take and adopt the ‘use it or lost it’ approach.

This would mean that staff are given the opportunity in which to take their leave, but if they do not take this opportunity they would be losing it. Such an action is perfectly lawful, however you should be able to clearly show that they have been given this opportunity. To this end, it is advisable that, should you receive requests to take leave, you permit this as much as possible.

As an employer, you also have the ability to enforce the take up of annual leave. For example, you may already have a term in their contract that states certain days, such as Christmas Day, need to be taken as leave and will come off their overall leave allowance.

You can also enforce staff to take leave on certain dates, provided you give at least double the amount of notice of the length of the leave. For example, if you instruct an employee to take one week’s worth of leave, they should be given at least two weeks’ notice of that leave.”

Remember, if you’re a Fish Insurance policyholder, you might have access to HR support from Peninsula themselves. This benefit is included in Care Protect, Healthcare Protect, and Independent Living Full Cover policies.

To access this support, simply call 0344 892 2480 and quote your policy number (stated on your policy schedule) and the account number FIS033.

This advice was provided by Peninsula on 1st March 2021.