The UK’s international travel ban was lifted on 17 May 2021, instead only advising against travel to any amber or red list country. These categorisations – as we saw with Portugal - are subject to change, leaving employees stranded abroad. We also heard this week that those who are “double jabbed” may be allowed to avoid quarantine; however, the next travel review is not until 24 June 2021.
Employers and employees alike will likely look back with fondness at the days where holidays were a simple matter of request, approval, jet set and return. COVID-19 travel restrictions have taken away what was once a relatively simple process, instead leaving a navigational minefield, leaving employees and employers to ask questions such around what happens if an employee cannot work due to self-isolation or quarantine requirements. What are the issues for employers and what should they be doing now?
Given the lockdowns, many employees have banked a lot of holiday. Basic entitlement (4 weeks) can be carried forward for 2 holiday years if it was not reasonably practicable to take holiday because of lockdown restrictions. This carry over was automatic and is in addition to any employer carry-over entitlement. For some, this is a lot of holiday to be taken! How are employers going to manage holiday requests and cover roles? Will employers allow employees to take (and cancel) holidays at short notice? Could staff be allowed to give less notice for taking holiday (albeit on a temporary basis) than that set out in the contract?
Review what holiday your workforce has and what has been carried forward and encourage employees to take time off even if they cannot go away. Start discussing how requests are going to be managed internally and explain to staff the expectations. Holidays are for health, safety and wellbeing so make sure managers are talking about holidays during their meetings and planning now for when employees might be away.
Red and amber list – quarantine and pay
The Government’s colour coded system means that anyone travelling to a country on the amber list (subject to a few exceptions) will need to self-isolate at home for a period of 10 days after they have touched down in the UK, or for between 5 and 10 days if they have followed the Government’s Test to Release scheme. It also means that anyone returning from a country on the red list will need to quarantine in a designated hotel for a period of 10 days after their arrival in the UK. In addition, all jet setters returning to the UK must also provide a negative test result before their return date – failing which they may also need to quarantine abroad and again when back in the UK.
In the case of employees who are able to work remotely there is likely to be minimal effect if they are required to self-isolate or quarantine in the UK at the end of their holiday and if they are able to work normally (albeit remotely), they should be paid as normal. Employees that are not able to work remotely however, face a very different situation which raises questions on how employers should deal with their absence from work. There are some options available to employers, which could include requiring the employee to take unpaid leave, or perhaps statutory sick pay if an employee is self-isolating because a member of their household has tested positive for COVID-19. Annual leave might also be requested but remember, employers may refuse a request for business reasons, although employers should be mindful of not acting in a discriminatory or unfair manner in doing so.
If an employee knowingly goes abroad to an amber/red country could this be a disciplinary offence?
Technically, if an employee knowingly goes to a red or amber country and as such is unavailable to work on their retun to the UK then yes this is a possibility. However, many have travelled in good faith to a green list country and been caught out by changing rules. Whilst it is possible, it would be worth taking advice to avoid legal consequences. In practice, many employers allowed unpaid leave or extended holiday rather than going down a more formal and confrontational route, this is perhaps sensible in the circumstances.
Can we ask where an employee is going on holiday?
For the most part, employees are not required to disclose their holiday destination to their employer. Given the unique times we are in it may not be unreasonable for employers to ask the question. Employers may also want to have discussions with the employee in advance of their holiday around what might happen if they need to self-isolate or quarantine on their return and if they are unable to work remotely (e.g. in relation to pay).
Specifically, employers may wish to discuss the practicalities of any required extended period of leave (e.g. booking an additional 10 days to cover the self-isolation or quarantine period), which may be particularly relevant if the destination is already an amber or red list country.
Can we refuse a holiday request?
Yes, if an employee has failed to give you adequate notice of their leave request, an employer may say no. Of course, employers should consider the reason for the request and why it has been made at short notice so using one’s common sense would be advisable. Employers can also refuse a request because of business operational need; for example, during busy periods where they are unable to get cover for such a long period of time, they are able to refuse an annual leave request.
Importantly, employers should ensure that any decision made in relation to granting or refusing leave requests should be done in a uniform and consistent manner, so to avoid any discriminatory issues. Whilst employers may be tempted to put policies in place that could ban employees from going on holiday or that prevents any employees who are not able to work remotely from going abroad, these are not recommended. Such policies will likely lead to friction within the work places between workers who can work remotely and those that cannot and would likely be discriminatory, e.g. on grounds of race or religion.
Talk about holiday plans during team meetings to get an idea over who might want holiday and when so you can gauge when the pressure points might be. Don’t assume that people won’t want to take leave and also make sure employees are using their holiday entitlement.
Could employees work remotely from abroad? What if they have a holiday home, for example?
Speak to employees about the prospect of them working remotely from abroad if they are unable to return to the UK. This situation is slightly more complex than remote working in the UK as it raises questions such as whether certain employee benefits would be affected whilst they are working abroad (e.g. medical insurance), what hours they will be working (which is likely to be more of an issue where there is a greater time difference), if there are any additional costs (e.g. making calls), who will incur those costs and for how long the employee is permitted to work in that way. There might also be tax and immigration issues depending on the length of time. Given the complexities involved, it would be advisable for employers and employees to enter into agreements in such circumstances to iron out the details. Again, employers will need to ensure that any such agreements are made in a uniform, consistent and justified manner so to avoid prospective claims for discrimination (e.g. on the grounds of race or religion).
On a practical level too, employers may also need to think about:
Employer liability – are employees covered for work that is completed overseas?
Corporate tax liability – how long is the employee going to be working remotely from abroad? Dependent on whether the employer has a presence abroad, it could potentially become liable for corporate tax if the employee continues to work in that country for a prolonged period of time.
Right to work – does the employee have the right to work overseas?
Data protection – is the employee going to be processing personal data? If so, is there likely to be a breach data is transferred to the employee abroad?
Commercial restrictions – are there any commercial agreements in place which might mean an employee is unable to carry out work of a particular kind or for a particular client from outside the UK?
What if an employee wishes to change their holiday plans?
Travel plans are changing and changing quickly. What if an employee wants to cancel their holiday or change the dates – do employers have to allow for this? Whilst there are some rules relating to illness impacting holiday or any rules in the contract, ACAS have advised for a flexible approach from employers. Talking to staff and setting out some expectations for operational and planning would be advisable, whilst appreciating that employee’s plans may change.
Travel uncertainty abroad may result in fewer employees wanting to take annual leave this year, or to delay it until later in the year. Time off to rest is crucially important for employees and employers should encourage employees to use their annual leave entitlement to avoid burn out. Employers may also want to keep abreast of employee’s annual leave entitlements and implement policies to ensure that some of an employee’s annual leave entitlement is used in the summer, or other less busy months – so to avoid a shortage of staff later in the year.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.