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BREAKING NEWS for employers 31 March 2020
Working Time Regulations amended to allow for carry-over of untaken leave due to COVID-19
On Friday 27 March 2020, the Working Time (Coronavirus) (Amendment) Regulations 2020 (‘Amendment Regs’) came into force. They relax the usual restriction on carrying over untaken leave into the next leave year, in circumstances where such leave has not been taken because of the Coronavirus (COVID-19) pandemic.
The Amendment Regs provide that the four weeks of annual leave provided for by EU legislation can be carried over into the following two leave years. Essentially, where it has not been ‘reasonably practicable’ for a worker to take some or all of his/her leave in the applicable leave year, as a result of the effects of COVID-19, such leave can be carried forward and taken in the two leave years immediately following the leave year in respect of which it was due. The ‘effects’ of Coronavirus (COVID-19) can include effect on the worker, the employer or the wider economy or society.
The additional 1.6 weeks of annual leave provided by domestic legislation is not covered by the Amendment Regs, although, under existing law, this can be carried over for up to a year by agreement between employer and employee.
To whom do the new regulations apply?
The Working Time Regulations (‘WTR’) and the Amendment Regs apply to almost all workers, including: agency workers, those who work irregular hours, and workers on zero-hours contracts. Therefore, this change is likely to apply to almost all of your workforce.
What happens with regard to carried-over leave on termination of employment?
The WTR have been amended to ensure that the worker can receive a payment in lieu of such carried-over leave if employment terminates before he/she has had the opportunity to take the leave in question.
Restriction on employer’s right to refuse leave
The Amendment Regs introduce a restriction on an employer’s right to refuse leave on particular days. Prior to this, an employer could require a worker not to take leave on particular days by giving the worker notice (that notice equalling the same amount of days as the number of days’ requested leave).
However, under the new Amendment Regs, an employer will only be able to require a worker not to take carried-over leave on particular days when the employer has ‘good reason’ to do so. Unfortunately, there is no definition of ‘good reason’ for this purpose.
What is clear is that the Amendment Regs are attempting to maximise workers’ opportunity to take such carried-over holiday so that, in accordance with the spirit of the WTR, the workers are provided with their appropriate ‘rest’ away from work, and do not forego this after the two year period has expired.
What are the practical implications for you as an employer?
This will undoubtedly cause additional administration and logistical burdens on your company, as you try to balance employees’ right to annual leave with the need to have staff working to re-stabilise your business after the crisis has passed.
Being proactive is essential here. Start giving consideration to:
- How you will deal with requests from employees to postpone imminent annual leave to a later date.
- Whether, despite the lockdown, some employees would be happy to take some of their annual leave in the short to medium term (this will be sector specific, depending on whether there is an upturn or downturn in work at present). Although travel is not possible at the moment, it can still be important to take time away from work. This will reduce the amount of leave which has to be taken at a later date.
- How you will engage with your employees, allowing requests for annual leave where possible, but also communicating clearly any business decision to refuse annual leave at specific times.
The situation will be different if you have furloughed your employees. We do not consider that employers are permitted to force employees to take some / all of their annual leave during a period of furlough. As a result, you will need to start devising a plan for the taking of annual leave once furlough has finished, and make early communications to employees regarding the possible carry-over of holiday.
Protecting your employees’ Health & Wellbeing
Following the raft of Government instructions over the past couple of weeks on self-isolation, shielding, and the mandatory closure of many businesses, more people than ever before are confined to their homes.
Many of your employees, even if they have not previously suffered with any mental health condition, may find this time difficult, feeling frustrated or lonely, and worried about their health and that of those close to them, as well as the possible future uncertainty about their jobs.
At particular risk might be those employees who live alone, either on a permanent basis or because they have been temporarily stranded due to their work being away from their family home, or because they need to isolate away from high-risk family members/those working on the front line.
New online guidance
Mental Health Minister Nadine Dorries announced that Public Health England has published new online guidance setting out principles to follow, in order to help people manage their mental health during this time. The Government has also announced a £5 million grant to leading mental health charities, administered by Mind, to fund additional services, including telephone and online support.
Tips on keeping in contact with your employees
In the circumstances, it would be beneficial to keep in contact with your employees via a regular e-bulletin, for example. This could highlight the fact that you are aware that they may be struggling, and perhaps give the contact details of a nominated member of HR to whom they can speak if they are having difficulties. It would also be worth making the following suggestions:
- Help on how to access any company benefits regarding mental health, such as a helpline or online counselling. There are also a number of NHS / charity helplines, which can be found here.
- Starting a WhatsApp group with colleagues to keep in touch (but stressing that no confidential client or company information should be discussed, due to the lack of secure platform).
- Looking after physical wellbeing: It is widely known that physical health has a big impact on emotional and mental wellbeing. Encourage employees (whether or not they are still carrying out work from home) to build some exercise into their day. Public Health England has free 10 minute workouts and there are other exercise videos at the online NHS Fitness Studio.
- Caring for sleep: It is a worrying time for everyone, and quality / duration of sleep may be affected as a result. The NHS provides advice and tips here. Productivity during working hours will almost inevitably improve with better quality of sleep.
Updated Working from Home advice
In our previous article, we provided some summary advice for employers who had employees working from home on a more permanent basis, due to the outbreak of Coronavirus (COVID-19). Since then, as a result of the Government ‘lockdown’, it is likely that large sections of a company’s workforce (depending on the sector) will be working from home for anything up to between three weeks and three months, if not longer.
Health & Safety in the home workplace
As well as the IT and logistical challenges that come with working from home, employers have a duty of care to take all steps that are reasonably necessary to ensure the health, safety and welfare of all their employees, and provide and maintain a safe system of work. This is particularly pertinent where the length of time working from home may well be extensive. As a result, we recommend that you take the following actions:
- Ask employees to undertake a risk assessment themselves, by completing a simple checklist which you provide, to ensure that their workstation is, as far as possible, fit for use (at least for the short to medium term).
- Provide information about correct posture for desk use, and the importance of taking regular breaks.
- Keep the situation under review – while an employee’s temporary desk set-up might be suitable for short-term use, it might have more adverse effects if used for a longer period of time (for example, working at a low coffee table, or sitting on a stool instead of a chair with proper back support).
Are staff allowed to collect office equipment for use at home?
Some of our clients have already raised the question of the extent to which employees are permitted to collect office equipment to use at home. The longer employees are required to work from home, the more pressing this issue will become.
Certainly, in cases where employees suffer with physical disabilities, every effort should be made to equip them appropriately, as you will have an obligation to do this by way of reasonable adjustments. For other employees, this might still be something you wish to consider, given employers’ obligations to their employees regarding health and safety.
However, you will need to create a clear and organised method for achieving this, making sure that all equipment is logged centrally, with the date it was removed from your office premises. You should devise a system which ensures that employees visiting the office to collect equipment comply with social distancing principles and do not visit if they are self-isolating and shielding in accordance with Government guidance. In these circumstances, alternative arrangements, such as equipment being delivered to these individuals’ homes, while maintaining a safe distance, may have to be made.
If you would like to discuss any of the issues raised in this article, or have other concerns about the impact of Coronavirus, please contact Rachael Lloyd, James Baker or Andrew Tobey in Michelmores’ Employment team.
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This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact our specialist lawyers to discuss any issues you are facing.
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