Hi all,
My employer has forced me to use the rest of my remaining holidays. I had 65hours left but have now lost those as i haven't used them due to shielding. I feel discriminated against because I've not been able to use my holidays due to shielding but after two appeals my employer still insists i can not roll even some of my holidays into the next leave year. Just wondering if anyone else is in the same position?
Hope all are safe and well
Thanks
I can only suggest talking to a union or CAB about your rights , it's hard as I'm not sure theres been a precedence like this before?
You could also call Scope’s helpline. I’ve worked with them recently (professionally) and they’ve been great.
Here’s all the government stuff if you need it: gov.uk/guidance/holiday-ent...
Good luck. We are all rooting for you! xx
They can’t retrospectively say ‘those 65 days were classed as holiday leave’ as you would have worked on those days but I’m not sure that they can’t say ‘the next 65 days are now holiday leave as we can’t carry them forward’.
Sorry I’m no better help than that but a union rep may know better.
All the best
Ali
I know it’s not the same.. but many employees have had to ‘take their leave’ despite not being able to ‘use it’ in any way this past year.
It’s a pretty complicated area (I’m a qualified HR officer). I’d need a bit more information, like what you do, and whether or not you’ve been working from home/on furlough/receiving SSP to be more specific, but I can summarise some major points that will apply.
Previously, employers were required to allow an employee to carry the additional 1.6 weeks of the minimum 5.6 weeks statutory allowance into the next leave year, but only if it wasn’t reasonably practicable for employees to take it within the existing leave year, AND written agreement existed between the employer and the employee. Usually this is documented in the employee’s terms and conditions, with many organisations often prohibiting carrying any leave forward except where staff were on sickness absence or another form of statutory absence such as maternity leave, or only allowing a limited amount such as 5 days. The 4 weeks leave afforded by the working time regs (WTR) are protected, and outside of sickness and statutory absence, have always previously been exempt from being carried over in an effort to ensure that staff take sufficient leave each year to maintain their health and well-being. Employers were also fined if staff didn’t take their annual leave. The new rules mean that, where covid is the root cause for taking leave within the year it was accrued not being ‘reasonably practicable’, employers must allow employees to carry over any unused amount of the 4 week, WTR element. This was primarily done in response to the working requirements of frontline services and keyworkers during the course of the pandemic, particularly within the NHS. In practice, it not being reasonably practicable for an employee to take their leave takes into account:
- Any increased demand on services provided due to coronavirus, which would mean the employee continues to work
- The practicable options available to the business due to the extent of disruption to its workforce
- The health of the employees
- The length remaining in the employee’s annual leave year i.e. having full entitlement left, but only two weeks remaining to the leave year
- The impact the employee taking annual leave would have on the wider society’s response and recovery to the pandemic
- The amount of employees able to cover
Some of those will be dependent on the type of business you’re employed by. Although it would be seen by many as very sharp practice, the current stance is that an employer CAN legally ask a shielding employee to take their leave, as long as they give notice of the requirement to take the leave double the length of the leave required to take e.g. if you had 17 days to take, they are required to give you 34 days’ notice unless otherwise agreed in writing. This is the standard requirement for any use of leave compelled by an employer, regardless of covid. However, if you are receiving SSP rather than full pay or on furlough, this is a bit more of a grey area. An employee entitled to sick pay can choose to take some or all of their leave during their sickness absence, but cannot legally be compelled to do so by their employer: you have to bear in mind, though, that those shielding and on SSP are not actually ill in the way that the working time protections were intended for, with SSP being used as a ‘safety net’ for CEV employees that were unable to be furloughed for whatever reason. If you’ve been working from home for the last few months, then most employers would take the view they they’re within their rights to ask you to take your leave. The only major objection to asking shielding staff to take holiday is that leave is protected on the grounds of being intended for staff to relax and do things they want to do, and a shielding employee is unlikely to be able to do this. However, the argument would be that most - if not all - staff have been unable to do this regardless of shielding status, not if they’ve been following the correct social distancing and national lockdown rules.
I would suggest you contact ACAS and discuss it with them: their advice is free, impartial, and generally excellent with regards to what your rights are and whether or not your employer is maintaining a legally sound position. They can also guide you on how and what grounds to appropriately challenge the decision if they feel your employer is in the wrong relative to your specific circumstances. Unless/until there’s additional guidance or a tribunal precedent, though, I suspect that a significant number of employers will do this out of practical, operational considerations more than anything else. No business, large or small, will want a significant proportion of their workforce carrying over weeks and weeks of annual leave for the next two years. It’s arguable that they’re breaching the spirit of the existing WTD laws by asking shielding staff to do so, but whether or not they’re actually breaking the law remains fairly woolly. Just in case, it’s probably also worth mentioning that any leave taken has to be paid at 100% of the normal annual leave rate, rather than a reduced rate because of furlough, so anyone taking leave must get the normal rate of holiday pay.
Hi, thanks all for the replies and the time taken to help is much appreciated.
I'm currently shielding and not working from home as my job role isn't one that working from home is possible. I have not received any paperwork regarding being off, i send my shielding emails onto my manager and as far as im aware he consults with h.r who have then said for me not to come into work. I'm getting full pay whilst shielding, but have lost a lot of money through not being able to work a regular overtime shift.
I work for my local government, my holidays are from birthday year so my new holiday entitlement starts march to march, i was told in the middle of February that im going to loose my 65hours remaining holidays as i wasn't allowed to roll any into the next holiday year. I got the impression my management seen me as having too much time off this past year due to shielding but this is out of my hands. I feel a little aggrieved due to the shielding not being my choice and the shielding is due to the drugs im on because of my disability.
Again, thanks for all the help and advice.
Hi,
I work in local government too, and am quite shocked they don't allow you to carry over the 65 hours, or a large part of it. I am also the union rep for the staff. The advice given above about the changes to the working time directive to allow employees to carry over extra leave is spot on, it is the law. The detailed advice from Charlie_G is excellent and takes into account the various factors you need to consider. My employer has a standard policy of allowing 5 days to be carried over. They are now treating requests for more than 5 days flexibly so that most people can take more than that if needed. No one has yet pushed for taking more than 10 days, but it will be an interesting test if they do. Best of luck.
Without giving an opinion on whether or not it’s appropriate, I think the deciding issue here (from the employer’s standpoint) will be that you’ve been at home on full pay for the duration. Had that not been the case, there might have been a different outcome, but LAs are notoriously financially driven, and carrying your leave is effectively at cost to them. Even if you get occupational sick pay at full salary, that’s usually only for 3 or 6 months before dropping to half or stopping, so from their perspective, they would have been financially better off had you been long term sickness absence.
Although the law stipulates that an employer must notify an employee in writing of the need to take annual leave where they require it to be taken for business reasons, and with the correct notice period, because this is to the employees’ benefit, there is no requirement for the employer to notify employees that the rules around carrying leave have changed. The onus is on the employee to ask the question about how any changes apply to them, and these rules regarding carrying leave changed almost 12 months ago, so I suspect what they’ve decided to do is view it as you choosing not to take your leave whilst shielding, rather than what you see as an inability to take your leave. Obviously, I don’t know if you have or not, but I’m guessing this will almost certainly be the view if you have actually taken some of your leave entitlement whilst shielding. However, if you’ve had no communication with anyone about changes to leave policy, or discussions about taking leave whilst off, it is incredibly sharp and punitive practice to turn round at this point and say you lose it. That said, how much does your 65 hours equate to in terms of your 5.6 weeks (or whatever your total entitlement is, I know local authorities can sometimes be surprisingly generous), and what does your contract say regarding carrying leave under normal circumstances? As long as you’ve already had the equivalent of your 4 weeks of WTR protected leave, sharp practice or not, the decision they’ve made will (or should) align with existing leave carrying policy. Under those circumstances, if your contract states that there’s no entitlement to carry leave, then that will be the basis of the refusal. If there is a pre-existing entitlement to carry leave, then your employer may be on shakier ground.
I definitely think this is one to run by ACAS, under the circumstances - there are lots of factors to consider, including your terms of employment, and what relevant interactions you’ve had with your employer over the last 12 months.
The law has been changed. You can roll I believe 5 days. It might be for furloughed staff not shielding. Read up on gov.uk
They’re legally allowed to do this. I used some of my employees holiday during furlough too otherwise they would have had far too much holiday still owing. We need to work together as it’s an unusual situation. Employers are under terrible strain right now with outstanding VAT and tax bills.
To keep jobs and the economy going, losing some holiday isn’t really a high price is it? We are all in this together?
Sorry this isn’t probably what you want to hear, but from my side as an employer, I’m just trying to keep my team in employment. Thankfully, they’re all incredible and on board with everything I’m trying to do. They even volunteered to reduce their hours etc...if that helps too. I am blessed.
There are always changes. Get in touch with your union to make sure both your actions and those of your employer are legal.
I had a similar experience with my work, I had to use two weeks of my leave left, according to my union they can do that
Benepali and shielding 
Have the guidelines for RA shielding letters been changed?
Shielding letter
Shielding
Shielding 
