On 17 May 2021, the "Stay in the UK" regulation was lifted and international travel has been allowed to restart, governed by a new traffic light system. All destinations have been categorised as green, amber or red, with different rules applying depending on the relevant colour coding. The government advises against all travel to countries on the amber and red lists, although there is no longer a legal prohibition. The categorisation of each country will be reviewed every three weeks, which means the rules applying to a certain destination could change on short notice. We consider where this leaves employers trying to manage their workforce this summer.
Those employees travelling to countries on the amber list will need to self-isolate in their homes for 10 days upon their return (or for at least five days if they follow the government’s Test to Release scheme), unless an exemption applies to them. Likewise, non-exempt employees travelling to red list countries will need to quarantine in a hotel for ten days upon their return. This may not be an issue if the employee can work remotely and there is no requirement for them to attend another workplace during this period. Clearly, for employees who cannot work remotely, their absence will be extended by the length of their self-isolation or hotel quarantine. It is a legal offence for an employer to knowingly allow their employee to attend anywhere other than the employee’s designated place during any period of mandatory isolation.
If the employee has travelled as part of a household group, the requirement to self-isolate or quarantine also applies to any children within the household, who will be unable to attend their usual childcare provider for the duration of the relevant period. Depending on the age of the children, it may not be possible for the employee to perform their work while also caring for their children.
Even where an employee can work remotely, there is still a risk that they will be unable to return from their holiday destination if they receive a positive test result before their return travel (all travellers, even from green list countries, must have proof of a negative COVID-19 test to return from overseas). In such circumstances, they would need to comply with the quarantine requirements of their host country and also with the 10 day self-isolation or quarantine requirements once they returned to the UK. Arguably, travelling at the present time poses a greater risk to the individual and their household of contracting COVID-19, increasing the likelihood of additional absence.
Can an employer implement a blanket ban on overseas holidays this summer?
Many employers may be tempted to implement a blanket ban on overseas holidays, to avoid the extended absences and uncertainty that will apply to those who choose to travel. Although this may appear an attractive option on the face of it, employers should consider the legal risks of applying a blanket ban on foreign holidays this summer. Such a ban may indirectly discriminate against certain protected groups who, for example, may be unable to visit family or make trips for religious reasons. Employers should also consider the mental health and wellbeing of staff who may be in desperate need of guaranteed good weather and a change of culture and scenery after lengthy periods of lockdown. Employers should also be mindful of employees accumulating excessive annual leave, especially given the relaxation of the normal carry over rules in response to the pandemic.
Where possible, employers should avoid implementing a policy that permits only those whose roles may be performed remotely to holiday overseas. This will inevitably lead to workforce tension and employee relations issues, especially if those permitted to travel are, in the main, those with higher paid, managerial roles.
Can an employer require staff to inform them of their intended holiday destination?
Employers should consider their reasons for requesting this personal information and conduct a data protection impact assessment. In the circumstances, given all the uncertainties and risk of extended absence, an employer may be justified in asking to know where an employee is travelling on holiday, to enable the employer to assess risk and plan accordingly.
Arguably, given that it is a legal offence for an employer to knowingly allow an employee to breach a legal requirement to self-isolate, it may be prudent for an employer to enquire to where an employee is travelling, or indeed negligent not to ask.
What should an employee be paid if they are required to self-isolate or quarantine after a holiday?
If the employee works remotely during their period of self-isolation or quarantine, they should be paid as normal. If they are unable to work during this period, they could request annual leave or to take unpaid leave (unpaid parental leave may be an option for parents with childcare responsibilities during this period).
If the employee is unable to work because they are sick, having contracted COVID-19 or otherwise, they will be entitled to sick pay in accordance with the employer’s policy. If the employee is required to self-isolate because a member of their household has tested positive with COVID-19, they would be entitled to at least statutory sick pay.
Can an employer refuse a request from an employee for an extended period of annual leave?
Under the Working Time Regulations 1998, an employer may refuse an employee’s annual leave request by serving a counter notice (provided the employer gives sufficient notice). It may, for example, be reasonable for an employer to refuse a request for annual leave that would result in the employee being absent for at least 24 days (14 days on holiday plus 10 days self-isolating), if the business is unable to cover the employee’s work for such a lengthy period of absence. The employer should, however, ensure that it exercises its discretion to grant and refuse requests for extended annual leave in a fair, consistent and non-discriminatory manner, and to consider the employee’s personal situation and reasons for requesting the leave.
Can an employer revoke permission for an employee to take annual leave if the status of their destination is re-categorised?
In theory, an employer can revoke a previously granted request to take annual leave, provided the employer provides sufficient notice (at least as many calendar days before the date on which the leave is due to start as the number of days which the employer is refusing – i.e. if the employee is revoking a two week holiday, the employer must inform the employee at least 14 days before the date on which they are due to start their leave).
Employers may be tempted to cancel annual leave where re-categorisation of holiday destinations results in an employee now requiring an extended absence due to the need to self-isolate or quarantine upon their return. However, such a move is likely to be unpopular and damage employee relations, and in some circumstances may constitute a breach of trust and confidence. In any event, the employer should consider the impact on an employee’s mental health and wellbeing before cancelling any booked leave.
Can an employer refuse a request to cancel or reschedule annual leave following a re-categorisation of holiday destination?
An employee may prefer to cancel booked annual leave or reschedule for later in the year (in the hope of restrictions easing) following a re-categorisation of their holiday destination from green to amber or red. Employers may be justified in refusing such requests due to staff resource planning and to avoid the accumulation of excessive annual leave later in the year. It may be beneficial from a health and wellbeing perspective for an employee to spread out their annual leave throughout the holiday year, and employers should ensure that their staff have sufficient opportunity to take their annual leave entitlement. Employers should, however, consider the individual circumstances of each request to cancel booked leave, and avoid blanket policies which may be discriminatory or negatively impact morale and mental health.
In view of the potential impact of the new traffic light system, employers should review their annual leave policies and procedures to ensure they are appropriate and adequately address these new risks and situations.
Lloyd Davey
Sarah Taylor