Who decides on carrying-over holiday entitlement?
The Regulations do not require any prior agreement between an employer and employee that it was not reasonably practicable for holiday to be taken for it to be carried over.
However, if an employee requests holiday then an employer must have ‘good reason’ for refusing it due to coronavirus. The term ‘good reason’ is not defined so the Government will expect employers, employees and (if necessary on any dispute) the Courts to apply common sense.
The Regulations are not confined to key workers so could, in principle, be used by employers for a wider range of employees.
The Government guidance suggests that the following factors should be taken into account when considering whether it was reasonably practicable to take the leave in the relevant year:
- Whether the business has faced a significant increase in demand due to COVID-19 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 COVID-19 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.
- The extent to which the worker taking leave would impact on wider society’s response to, and recovery from, the effects of COVID-19.
- The ability of the remainder of the available workforce to provide cover for the worker going on leave.
Related FAQs
With the exception of the Covid-19 Corporate Financing Facility (see below), there was initially little dedicated financial assistance for medium-sized and larger businesses affected by the coronavirus outbreak (the so-called “stranded middle”); however, from 20 April 2020 such businesses (with a turnover above £45 million) have been able to access finance via the Coronavirus Large Business Interruption Loan Scheme (“CLBILS“).
CLBILS operates in a similar manner to CBILS except that a lender can provide:
- up to £25 million to businesses with turnover from £45 million up to £250 million; and
- up to £50 million to businesses for those with a turnover of over £250 million.
Finance is available in the form of:
- term loans
- revolving credit facilities (including overdrafts)
- invoice finance and
- asset finance,
in each case available on repayment terms of up to three years.
Several changes to CLBILS took effect from 26 May 2020. The maximum amount available through CLBILS to a borrower and its group increased from £50m to £200m. Term loans and revolving credit facilities over £50m will be offered by CLBILS lenders which have secured additional accreditation. The maximum size for invoice finance and asset finance facilities remains at £50m. Companies borrowing more than £50m through CLBILS will be subject to further restrictions on dividend payments, senior pay and share buy-backs during the period of the loan. Further information on the most recent changes, including new provisions on seniority of CLBILS facilities, can be found on the CLBILS page on the British Business Bank website. There is also an in-depth FAQs section for businesses, which has the full details of the changes to the scheme.
Unlike CBILS, the UK government will not make payments to cover the interest and any lender-levied fees in the first 12 months of any facility so these larger businesses will not benefit from the no upfront costs and lower initial repayments that smaller businesses eligible for CBILS benefit from. The other key provisions of CLBILS, such as the eligibility criteria, the 80% government-backed guarantee and security, are similar to those of CBILS.
Eligibility is similar to CBILS and businesses must:
- Be UK-based in its business activity
- Have an annual turnover of more than £45 million
- Have a borrowing proposal which the lender would consider viable, were it not for the current pandemic, and for which the lender believes the provision of finance will enable the business to trade out of any short-term to medium-term difficulty
- Self-certify that it has been adversely impacted by the coronavirus (COVID-19)
- Not have received a facility under the Bank of England’s Covid Corporate Financing Facility.
Businesses from any sector can apply, except the following:
- Credit institutions (falling within the remit of the Bank Recovery and Resolution Directive), insurers and reinsurers (but not insurance brokers)
- Building Societies
- Public-sector bodies
- Further-education establishments, if they are grant-funded
- State-funded primary and secondary schools
All lending decisions remain fully delegated to the accredited lenders.
Where an employer is proposing to dismiss:
- 100 or more employees at one establishment within a 90-day period, consultation must begin at least 45 days before the first dismissal takes effect
- Between 20 and 99 employees within a 90-day period, consultation must begin at least 30 days before the first dismissal takes effect
- If you are proposing to dismiss less than 20 employees then there are no minimum time limits but you must adhere to a fair process which will involve individual consultation and providing the employee with a right of an appeal
Once the collective process concludes, an employer can make the decision to proceed with the restructure. They will then have 1-on-1 meetings with employees about the impact of the restructure on them. This will include consideration of alternative employment. There is no need to consult further about the proposal, merely the effect of the restructure on the individual.
Yes – there should be a framework in place to ensure that MHFAs are fully supported themselves and so that individuals are supported beyond the support the MHFAs provide.
This is critical. The guidance remains clear – IF YOU CAN WORK FROM HOME YOU SHOULD CONTINUE TO DO SO. Bringing people back into work unnecessarily is a big mistake.
Think about how many employees should physically return to the workplace – the fewer the people on site, the lower the risk AND the less pressure on public transport.
Employers will need to be very careful to recognise workers in vulnerable groups or who develop or live in a household with someone who develops symptoms of Covid-19 – again, look at government guidelines. You should understand that this will mean a higher number of staff absences and consider how this might be managed.
Look to keep smaller teams of workers together, minimise physical meetings and if you MUST have them, keep them short and under 15 minutes. Be imaginative – use online platforms like Teams and Zoom wherever you can.