Can we insist employees take unused annual leave or should they be allowed to carry it forward due to COVID-19?

Regulation 18 of the Working Time Regulations (Northern Ireland) 2016 enables employers to require employees to take annual leave on particular days provided that they give employees twice as much notice as the leave they are being required to take. Therefore, employers can ask employees to use untaken leave in the current leave year.

Annual leave entitlement is derived from three main sources:

1. 20 days under reg. 15 of the Working Time Regulations (Northern Ireland) 2016 (“WTR 2016”) (basic entitlement);
   
   
2. 8 days under reg. 16 of the WTR 2016 (additional entitlement); and
   
   
3. Optional additional days as specified in the employment contract (contractual entitlement). 

In terms of carry-over of annual leave, employees would typically only be able to carry over their basic entitlement if they were unable to take it due to sickness or family-related leave. Additional entitlement can be carried subject to a relevant agreement being in place with employees and contractual entitlement can be carried forward at the employer’s discretion.

However, the government passed temporary legislation to enable basic entitlement to be carried into the subsequent two leave years it was not reasonably practicable for employees to take holidays due to “the effects of Coronavirus”. Despite this, government guidance encourages employers to do "everything reasonably practicable" to ensure that employees are able to take as much of their leave in the current leave year.

Ultimately it is a business decision as to whether to permit employees to carry over untaken annual leave. It is prudent for employers to consider the following factors:

• whether employees were unable to take annual leave due to increased demand;
• the remaining length of the leave year;
• whether employees were on furlough; and
• resourcing.

Employers should also consider if they want to impose a time-frame on which any carried over leave must be used by, for example, six months.