Know how much holiday to give your staff
Holiday entitlement and pay during coronavirus
This guidance explains to employers in Northern Ireland how holiday entitlement and pay operate during the coronavirus pandemic.
This guidance should not be treated as legal advice. Employers and workers should always check individuals contracts of employment and if necessary contact the Labour Relations Agency’s Workplace Information Service on Tel 03300 555 300 or seek professional legal advice.
Almost all workers, including zero-hour contracted workers and those on irregular hours contracts, are legally entitled to 5.6 weeks’ paid holiday per year. The exception is those who are genuinely self-employed.
For the purposes of calculating holiday entitlement, the statutory 5.6 weeks entitlement is split into 4 weeks derived from EU law, and an additional 1.6 weeks from UK law. This guidance focuses on the legal minimum entitlement of 5.6 weeks. Many workers have contracts that entitle them to additional paid holiday beyond this, known as contractual holiday entitlement. Workers and employers can agree to alter the terms of the worker’s contract, providing it does not go below the statutory minimum of 5.6 weeks.
A worker has the same holiday entitlement, regardless of whether they are on sick leave, maternity leave, parental leave and adoption leave, and other types of statutory leave.
- require workers to take holiday
- cancel a worker’s holiday, if they give enough notice to the worker
The required notice periods are:
- double the length of the holiday if the employer wishes to require a worker to take holiday on particular days
- the length of the planned holiday if the employer wishes to cancel a worker’s holiday or require the worker not to take holiday on particular dates
Employers can ask workers to take or cancel holiday with less notice but need the workers’ agreement to do so.
These notice periods are in advance of the first day of the holiday, and the notice must be given before the notice period starts. For example, if an employer wanted to prevent a worker taking a week’s holiday, they would have to give notice earlier than 1 week before the first day of the holiday. For the purposes of calculating the notice period, any uninterrupted period of holiday counts as a single period. These rules on notice periods can be altered by a binding written agreement between the employer and the worker.
For further information, see taking holiday – notice periods, restrictions and sickness.
There is no statutory right to time off for bank holidays. Employers can include bank holidays as part of a workers’ statutory holiday entitlement if they choose, but do not have to do so.
Where necessary, employers can require workers who would usually take bank holidays as holiday to work instead, using the standard notice periods – see taking holiday – notice periods, restrictions and sickness. Employers must still ensure that the workers receive their statutory holiday entitlement for the year.
A worker who would usually receive bank holidays as part of their statutory holiday entitlement is required by their employer to work on the 8 May 2020, a bank holiday. The worker’s employer is then required to give the worker an additional day of annual leave later in the leave year, to ensure that the worker does not fall below the statutory minimum for the year.
The amount of pay that a worker receives for the holiday they take depends on the number of hours they work and how they are paid for those hours. The principle is that pay received by a worker while they are on holiday should reflect what they would have earned if they had been at work and working.
Holiday pay should be calculated in line with current legislation - see calculate holiday entitlement and holiday pay, based on a worker’s usual earnings. The underlying principle is that a worker should not be financially worse off through taking holiday. Where a worker has regular hours and pay, their holiday pay would be calculated based on these hours. If they have variable hours or pay, their holiday pay is calculated as an average of the previous 12-weeks of remuneration excluding weeks in which there was no remuneration.
Carrying annual leave into future leave years
The 5.6 weeks of statutory holiday is split into 4 weeks and 1.6 weeks, and there are some differences in the 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 4 weeks cannot be carried into future leave years, so employers must facilitate these weeks being taken within the relevant leave year
However, under certain circumstances, employers must allow the 4 weeks to be carried into future leave years. Where a worker cannot take annual leave due to them being on maternity leave or sick, employers must still allow workers to carry their annual leave forwards.
Carrying leave forwards: how new legislation has changed the rules
The NI Executive has introduced a temporary new law allowing employees and workers to carry over up to 4 weeks’ paid holiday into their next 2 holiday leave years. As a result of the introduction of the Working Time (Coronavirus) (Amendment) Regulations (Northern Ireland) 2020 there may be circumstances when some or all of the leave may be carried forward and taken in the two years immediately following the leave year in which it was due.
This will apply in circumstances where it is not reasonably practicable for a worker to take some or all of their leave in a leave period as a result of the effect of the coronavirus on the worker, employer or the wider economy or society.
If, however, you are able to facilitate a worker's leave, then standard rules will continue to apply.
What is reasonably practicable?
When considering whether it was not reasonably practicable for a worker to take leave as a result of the coronavirus, so that they may carry untaken holiday into future leave years, an employer should consider various factors, such as:
- 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
Employers 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.
Handling leave that has been carried forward
When a worker carries leave forwards due to the coronavirus, they will continue to accrue holiday in the next leave year. As such, they will have 2 entitlements:
- the leave carried forward that must be taken within the specified period of the legislation outlined above
- the leave relating to the new year
Holiday pay for leave carried forward should be calculated in the same way as set out in calculate holiday entitlement and holiday pay.
Owing to the coronavirus, a worker carries 2 weeks forward into their next leave year. In that leave year they will have a total of 7.6 weeks of statutory holiday entitlement:
- the 2 weeks carried forward (‘carried holiday’)
- the 5.6 weeks to which they are entitled in the new leave year
When a worker with multiple entitlements takes holiday, it is generally best practice to allow the worker to take holiday from the entitlement that expires first. In practice, this means that workers should be allowed to take the holiday to which they are entitled in the new leave year before they take the ‘carried’ holiday, as the ‘carried holiday’ entitlement lasts for 2 years.
However, ‘carried holiday’ is subject to further protections – to be able to refuse to allow a worker to take “carried holiday” on particular dates, the employer must have good reason.
The employer may request that the worker takes “carried holiday” instead of their regular entitlement. If they do so, the employer must still ensure that the worker receives their full regular entitlement in the leave year to which it relates, in addition to any carried holiday taken.
Where carried leave is carried into a further leave year, the employer must facilitate the worker taking their leave in that later year.
Giving notice to workers
There is no statutory requirement to give workers notice that they will be able to carry holiday forward if they do not take it. However, it is unlawful for employers to prevent workers from taking holiday to which they are entitled.
To ensure that workers do not lose the holiday entitlement that they are entitled to, it is best practice for employers to inform workers of both the need to carry forward, and how much leave will be carried.
Requiring workers to take annual leave
An employer’s ability to require a worker to take annual leave is unaffected by the ability to carry holiday into future leave years. Where it is reasonably practicable for a worker to take annual leave, employers should facilitate this.
Generally, employers remain able to require workers to take annual leave to ensure that holiday is taken in the leave year to which it relates. This is covered in more detail in calculate holiday entitlement and holiday pay.
Payment in lieu for carried leave
Carried leave is still subject to the usual rules around payment in lieu. An employer must facilitate the worker taking their annual leave and not replace it with a financial payment (known as payment in lieu).
However, if the worker leaves employment, the employer must pay the worker for any untaken leave. This will include the carried leave under the coronavirus exemption, along with any leave that the worker has accrued in the relevant leave year. The payment in respect of such untaken leave is based on a statutory formula set out in regulation 17 of the Working Time Regulations (Northern Ireland) 2016.
You can contact the Labour Relations Agency (LRA) if you have further questions on the LRA Workplace Information Service Tel 03300 555 300.