Annual leave: agreed COSLA guidance and CEC’s position

Read our analysis of the Council’s current position on annual leave in light of COSLA guidance and legislative changes

Photo above by Viko Mozara, courtesy of unsplash

The coronavirus situation has caused several concerns around annual leave to be raised. Some of the main concerns are:

  • when to take annual leave
  • carrying forward annual leave to following years
  • using annual leave for wellbeing purposes
  • lack of flexibility over annual leave booked prior to lockdown
  • stress caused by lockdown.

Edinburgh Council’s guidance

The council’s current guidance, covering permanent employees, says that you should take annual leave during the current annual leave year unless there are “operational reasons” precluding this. Employees unable to take annual leave as normal may be permitted to carry forward a maximum of 10 days into leave year 2020/2021 only in “exceptional circumstances” and where essential services demands permit.

Annual leave booked prior to lockdown is likely to be honoured by CEC, unless the employee is in a “critical role”, but cancellation at the behest of the worker is unlikely to be accommodated by CEC, unless the employee is in a critical role.

What the Council must consider

Lockdown measures and Covid-19 are causing abnormal circumstances for all CEC employees in both their working and private lives. CEC guidance on annual leave should reflect this.

All CEC employees are affected by these coronavirus related workplace changes and may be categorised in, at least, three different groupings depending on their work and how their workplace is responding:

  • frontline workers who may find it difficult to take annual leave due to their job requirements under the current circumstances
  • homeworkers who need to take reasonable breaks from the pressures they are under
  • those who cannot work in their job currently but are at home potentially experiencing stress of isolation

Grouping 3 may be split further, into those

  • able to work but unable to do their current job
  • unable to work (e.g. shielding) but whose job is still being done
  • unable to work (e.g. shielding) and whose job is not being currently done
  • whose work may be able to be undertaken from home but are currently unable to undertake any work
  • on sick leave.

Rules on carrying forward annual leave

Normally, annual leave carry forward is limited and only allowed by agreement between employees—and their trade unions—and the employer, or in specific circumstances, such as ill health.

The exceptional circumstances caused by the coronavirus pandemic have encouraged the UK government to make amendments to statutory instruments including coronavirus amendments to the Working Time Regulations.

Read about the UK Government’s relaxing of annual leave rules.

Changes to Working Time Regulations mean that employers are released from their obligation to ensure that employees take annual leave within the leave year, allowing a carry forward of up to 4 weeks’ annual leave into the next two leave years.

ACAS guidance stresses that employers “should still be encouraging workers and employees to take their paid holiday” through normal processes.

Inferences may be properly drawn from this guidance related to employee wellbeing and the need to take a break from work, especially given the potential stresses related to the current crisis.

COSLA guidance

COSLA‘s guidance on annual leave was issued to local authorities on 1 May 2020.

Read the full CoSLA guidance here

This guidance encourages dialogue and understanding in relation to annual leave and states:

A blanket approach – in either cancelling all leave or forcing employees to use up their leave during the crises – is unlikely to assist the organisation or retain the motivation of the workforce.

COSLA suggests an approach to annual leave that provides support and encourages a greater understanding of employees’ needs, particularly in relation to mental health. It goes further, highlighting that, for some, annual leave may be essential yet for others a compulsion to take annual leave may increase feelings of isolation.

Guidance from CEC, while correct in a legalistic sense, takes little or no cognisance of individual needs and hints strongly that, unless employees take annual leave, CEC will impose annual leave upon employees. This is despite the relaxation of compulsion on employers to ensure employees take their annual leave.

There is confusion over whether the changes in regulations only apply to key workers, particularly as ACAS examples only relate to self-isolation, illness or key-working but ACAS states that:

Employers, employees and workers should be as flexible as they can about holiday during the coronavirus pandemic.

Conclusion

It is important that CEC consider both its legal and moral obligations to employees during this pandemic. It may have a legal right—litigation notwithstanding—to impose annual leave upon employees, or even categories of employees, but action of this nature would likely cause considerable ill will and potentially illness amongst the workforce.

CEC should consider the health—mental and physical—and wellbeing of all employees, whether they are frontline, homeworking or at home unable to work. This must be, in deed and publicly, the prime focus for how they handle annual leave during the pandemic. CEC should also bear in mind that the purposes of annual leave, while including taking a break from work, also include many leisure, travel, sport and other activities that are unlikely to be available to employees during this current period or even within the current leave year.

CEC should consider the options given to them by both COSLA and the UK Government far more seriously than they have to date. They should place more emphasis on employee wellbeing, particularly mental health, in relation to the taking or not of annual leave.

It is feasible for CEC to enable carry forward of 20 or more days annual leave over the next two leave years, while further encouraging employees to take annual leave during this crisis period to support their wellbeing.

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