21st June 2021
“We’re all going on a summer holiday”…….. or are we?
Following the government’s introduction of the traffic light system for foreign travel, much uncertainty still remains about which countries are likely to appear on which list and how long they will stay on a particular list. At the time of writing, anyone travelling to a green list country is not required to quarantine on their return, but anyone travelling to an amber or red list country (which the government advises against unless it is essential), has to quarantine either at home or in a quarantine hotel for up to 10 days.
With summer holidays looming, people will understandably want to make plans but as an employer, how are you expected to deal with employees who plan to travel abroad this summer?
Can an employer stop an employee from going on holiday overseas?
The government’s advice is still not to travel to amber or red list countries for leisure purposes. However, instructing an employee not to go on holiday to particular countries, in effect, restricting how they spend their leisure time would be difficult to justify as a reasonable management instruction as it is not an instruction on how to do their job.
Ideally, an employer will discourage employees from booking holidays to countries on the amber or red lists and may consider introducing a new policy that requires an employee to specify when a holiday request is made, the country that they are planning to travel to so that a conversation can be held as soon as possible about how they plan to deal with any requirement to quarantine. As always, all requests for holiday should be considered fairly and consistently to avoid any allegations of discrimination, particularly on the grounds of nationality (for those employees who are not UK nationals), constructive dismissal or breach of the Working Time Regulations. When considering whether a holiday request for a trip overseas can be approved, you will need to consider both the period of leave being requested and the potential quarantine period after they return.
They key is to be clear about what your internal policy is on employees who need to quarantine after a holiday and what options are available to those employees. You may need to update any Holiday Policy to reflect the options, which depending on the role, could include, working from home (or a quarantine hotel), using annual leave, unpaid leave or some other arrangement, all of which may have the effect of discouraging employees from booking holidays to non-exempt countries.
What pay is an employee entitled to if they have to quarantine after a holiday overseas?
The general rule is that there is no legal entitlement to be paid if you are unable to work as required. Of course, if someone is able to work from home and to fulfil their duties in full, and this has been agreed in advance with the employer, an employee will be paid as normal while they are quarantining.
If an employee is unable to work form home, you may want to consider whether they have annual leave available to cover the period of quarantine, possibly carried over from last year due to COVID-19, whether they could take any time off in lieu (TOIL) that may be due to them or agree a period of unpaid leave in the circumstances.
If an employee was to call in sick during the quarantine period in order to try to guarantee a level of pay, the normal rules apply and an employer would have to satisfy themselves in line with their internal policies as to whether the sickness is genuine. Statutory Sick Pay (SSP) is not available to employees who are required to quarantine after a holiday and have no COVID-19 symptoms, the reason being that they have taken the risk of going on holiday and in most case should have been aware of the requirement to quarantine.
What if an employee books a trip to a green list country and that country moves onto the amber list while they are away?
It has been widely publicised that the government reviews the countries on each list every 3 weeks so as we saw recently with Portugal moving from the green to amber list, it is important that the necessary arrangements are discussed and agreed before an employee goes on holiday, even if it is a green list country when they go.
As explained above, there is no legal entitlement to pay an employee if they are unable to work (unless there is a contractual entitlement to pay in this situation) so all employers should make their position clear before employees book holidays to avoid uncertainty and potential disputes.
However, even clear plans can be unexpectedly affected if other members of staff are required to self isolate following a notification from NHS Test and Trace for example, so unplanned absences should also be factored into any plan where possible.
Can an employer require an employee to travel for work overseas?
In more normal circumstances, the answer to this question would simply be dictated by advice from the Foreign, Commonwealth and Development Office (FCDO) on travelling to a particular country, as well as any restrictions put in place preventing people from leaving the UK. Due to restrictions imposed on foreign travel due to COVID-19 the position has been less clear, particularly as from 17th May 2021, although work travel is technically permitted, the government’s working safely guidance continues to advise against unnecessary travel for work.
An employer will still need to determine whether the work travel is necessary and appropriate, bearing in mind their health and safety obligations towards employees and particularly if the employee in question is pregnant, has a pre-existing health condition, is over 70 or has any other characteristic that puts them at higher risk of contracting COVID-19. Employers will also need to consider whether the destination requires visitors to self-isolate upon arrival as this could have a significant impact on the length of the trip.
It may therefore be appropriate to require an employee to travel to a green list country if the travel is deemed necessary and not possible to conduct over a video conferencing facility such as Zoom or Teams but it will always depend on the specific advice at the time of the trip and the nature of the business.
Managing holiday requests and discussing these plans with your employees is inevitably going to create challenging situations for many employers. It shouldn’t be forgotten that there are very positive benefits to employees taking holiday, not least to boost their mental wellbeing following what has been an unprecedented and difficult 18 months for many. However, managing your workforce and ensuring that you have the necessary staff available to work as businesses further open up and restrictions ease, is going to be crucial to any successful business.
If you have any questions about managing your workforce this summer, please contact Julie Edmonds, Head of Employment, by email (firstname.lastname@example.org); telephone (0207 644 7286) or contact her on LinkedIn https://www.linkedin.com/in/julie-edmonds-7a608346/