I know what you (didn't do) this summer...

With the government’s “air bridges” looking a little shaky and Spain being taken off the list as of 26 July 2020, what happens if your employees are caught by the ever changing holiday rules? Emma O’Connor, Head of Training, discusses what employers can do.

Despite the promise of “air bridges”, many employees will be deciding whether to stay at home or risk a holiday abroad. With Spain, the Balearic islands and the Canary islands being removed from the list of countries British holiday makers can travel too and not have to quarantine from 26 July, many employees are now stuck abroad, or are due to fly in the next few weeks, and are unsure of what to do. What do these changing plans mean for holidays this Summer and what are the risk if employees do travel but then have to quarantine for 14 days on their return. With many returning to work and offices and workplaces re-opening, can employers afford to have their people absent for another 14 days?

Quarantine rules and pay

Essentially, if an employee has to quarantine after returning to the UK, they cannot leave their homes for 14 days. If they breach the rules, they could face a fine of up to £1,000. For most employees, they can continue to work from home for the duration of the quarantine period as they have done for the duration of lockdown. However, for others this may not be so simple or indeed possible. Even though the employee is quarantining following a return to the UK and complying with quarantines rules, they would not qualify for Statutory Sick Pay (SSP) and presumably company/employer sick pay as they are not technically “ill”. However, the employer could decide to pay sick pay at their discretion, remembering of course, to exercise their discretion fairly and not in a discriminatory manner if it chooses to. However, without pay, can some employees afford to quarantine? Your staff should still report in and comply with any absence rules. The government have said they are looking at the rules with regards to SSP and quarantine and have said no employee should be “penalised” by having to quarantine. However, employees cannot demand their employer pays them full pay as they are not “ready, willing and able to work” because of the quarantine rules.

Employers could explore other working from home options, for example, looking at other work which could be done from home, if their own job precludes home working – and therefore allow them to be paid. In some instances, for example, if the employee has had to travel for a family emergency or on business, the employer may need to be flexible and could adopt a different approach. If employees cut their holiday short, could they, for example, continue to take the remainder of their booked holiday for part of the quarantine period or book additional holiday? Will the employer ask them, instead, to take holiday? ACAS suggest that, subject to the rules of the Job Retention Scheme and the employee’s qualification, could the quarantining employee be placed on furlough leave (if they have previously been on furlough for 3 consecutive weeks prior to 31 July)? This is a question which could be explored; although it may not suit the business at this stage.

Cancelling and Rebooking

If the employee does cut their holiday short, as well as allowing the employee to continue with their “holiday” during quarantine, the employer might instead allow the employee to cancel their holiday and rebook at another time. Holidays have to be taken at a time convenient to the employer but as the end of the holiday year approaches, will there be time for cancelled or indeed other holiday to be taken? Your people should be encouraged to take holiday and certainly their basic 20 days leave should be taken in the holiday year, remembering holiday is a health and safety requirement. If employers want to designate when holiday is to be taken by employees it has to give twice the notice as the holiday to be taken. If the employer wishes to cancel the employee’s holiday it should follow any rules in place or under the Working Time Regulations 1998, although this may not prove popular with your people.

At a time when businesses are opening up, can employers afford for holiday to be taken and disrupt their reopening plans. Also, if redundancy is an option, large accrued holiday pots will need to be paid out on termination so there are financial considerations too. Similarly, employers must decide if storing up holiday until the end of the holiday year works for their business (and people). We are helped somewhat, by the new holiday carry over rules which came into force in March 2020, which allow basic Working Time Regulations 1998 holiday (20 days) to be carried forward for up to 2 holiday years where the worker (remembering holiday is a worker right not just an employee right) is unable to use their holiday entitlement because of Covid-19. But what about holiday over and above the basic entitlement – use it or lose it? Is this fair in this current holiday year? There could well be a rise in holiday claims in 2021 arising from holidays untaken and lost in 2020 as well as a rise in constructive unfair dismissal claims.

Set the rules – now

It is unlikely that the restrictions regarding travel from the UK will be relaxed in the short term. Certainly, for those who travelled to Spain before 26 July, their position is different as they travelled on the advice of government prior to 26 July 2020; however, what now for those who choose to travel knowing of the new rules or understanding that “air bridges” can be removed with a moment’s notice? We now know that the rules on air bridges can change – and change quickly – so employers need to act. Employers need to be clear what their rules are and what it expects. Think about:

• What is essential and non-essential travel
• Is there a distinction between countries excluded or subject to air bridges
• What will happen if the employee has to quarantine
• What happens to their pay
• Can the employee reclaim holiday if they cut their holiday short
• What are the consequences if employees fail to comply

Communicate your policy, follow it and be as flexible (and fair) as you can be for emergencies or changing situations.