Given the significant pressures on staff and services at this time, annual leave should not be the first call for any absence related to COVID-19.
NHS employing organisations should, where possible, consider planned leave and how staff annual leave requests might be taken both over the Easter period and beyond.
How staff rest and recuperate at a time of the pandemic is vital. Employers will need to consider how they ensure that staff have enough rest in order to maintain their own physical and mental wellbeing.
Due to these exceptional circumstances, there will be difficult choices to make and there will be instances where pre-booked leave may need to be delayed in order to provide continuity of services for patients and support for other members of staff. In these particular circumstances, this position will need to be discussed with the individual in a sensitive manner. All other avenues should be explored with the member of staff before a decision is taken.
Decisions to cancel leave must be very carefully considered as part of emergency preparedness planning and in consultation with local staff organisation representatives.
Organisations should give serious consideration, in partnership with local staff representatives, to those services where a shortage would be operationally critical and cancelling or restricting annual leave would, as a last resort, create additional capacity.
Staff continue to be entitled to their annual leave allowance set out in their terms and conditions:
It is likely staff will have booked, or plan to book, annual leave during the period of the pandemic. Due to the additional pressure the NHS will face, it is expected that employers will need to consider carefully whether to ask staff to cancel pre-booked annual leave, and/or advise staff that annual leave cannot be booked during certain periods.
Working Time Regulations in relation to annual leave
The overriding principle during this time of national emergency is to ensure NHS staff are well supported and are able to maintain their health and wellbeing, so they are able to provide the care people rely on. Any decision to cancel or delay requests for annual leave should be given very careful consideration, while ensuring safety and care of patients.
The Working Time Regulations 1998 (WTR) provide detail on the issues employers must consider when notifying staff about cancelling any annual leave.
There are specific requirements which include notice periods and consideration of compensation. Employing organisations should review what local arrangements they may already have in place and ensure arrangements are in line with the WTR.
Given that the majority of the NHS workforce is female and more likely to be primary carers, careful consideration should also be given to the equality impact of any cancellation policy, whether the policy could be objectively justified and that organisations consider their obligations under the public sector equality duty.
Carry over of annual leave
Where employees cannot use their full entitlement of annual leave because of the pandemic, employers should consider revising their local policies to exercise maximum flexibilities in relation to carrying over of leave to the next leave year.
New temporary statutory rules introduced by the government to deal with COVID-19 pressures mean that employees who are unable to take their annual leave entitlement due to COVID-19, can carry over up to 20 days (pro-rated for part-time staff) of annual leave over a two year period. However:
- if employees cannot take bank holidays off due to COVID-19, they should use the annual leave at a later date in their leave year
- if this is not possible, bank holidays can be included in the 20 days’ annual leave that can be carried over. This holiday can be taken at any time over a two-year period.