The COVID fallout: annual leave

On 17 May 2021, the UK Government lifted the international travel ban and, instead, put in place a traffic light system, advising against travel to any amber or red list country.

These lists are fluid and subject to regular review, meaning that countries that were considered ‘green’ countries (such as Portugal) are subject to change, often at short notice which could leave employees stranded abroad.

Untaken leave

One of the issues that has been a common theme for the past year is what to do with employees who have built up a reserve of untaken annual leave. The Government confirmed last year that basic leave entitlement (4 weeks) can be carried forward for two holiday years if it was not reasonably practicable to take holiday because of COVID-19 restrictions. This carryover was automatic and is in addition to any contractual carryover entitlement an employee may already have. This raises a number of issues for employers in managing this, and one of the first things to ascertain is how much annual leave each employee has ‘in the bank’.

As the traffic light system is constantly evolving, this may result in fewer employees wanting to take annual leave this year or delaying it until later in the year. While it is important to have a degree of empathy with employees, time off to rest is important and employers should encourage employees to use their annual leave entitlement to ensure that they are getting the benefit of this.

As with most workplace issues, communication is key, so it is important to be clear with employees what is expected in terms of taking leave and whether employees are to be requested to take a certain amount of their annual leave by a specified date to try and manage this. This may be something that is already built into your annual leave policy so it is worth checking this.

The requirement to quarantine

The traffic light system means that anyone travelling to a country on the amber or red lists (subject to a few exceptions) will need to self-isolate at home on their return for a period of 10 days (or a hotel in the case of red countries), or for between 5 and 10 days if they have followed the Government’s Test to Release scheme. There is also a requirement for travellers to provide a negative test result before their return to the UK. If this requirement is not complied with, they may also need to quarantine abroad and again when back in the UK.

Where employees are able to work from home, 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 this is the case they should be paid as normal. Employees that are not able to work from home may be more difficult to deal with.  There are a few options available to employers, including requiring the employee to take unpaid leave, or annual leave if the business can facilitate this (and the employee has enough annual leave to do this).

If an employee knowingly goes abroad to an amber or red country, could this be a disciplinary offence?

If an employee knowingly goes to a red or amber country and, as such, is unavailable to work on their return to the UK then this could be considered a disciplinary issue. However, due to the fluid nature of the traffic light system, many have travelled in good faith to a green list country and been caught out. If you are considering treating this as a disciplinary issue, it is important again to communicate this to staff. In practice, most employers are allowing unpaid leave or extended holidays rather than going down the disciplinary route.

Can an employee be asked where they are going on holiday?

Generally speaking, there is no obligation for employees to disclose where they are travelling to on holiday, however, given the unprecedented situation we are in it may not be unreasonable for employers to ask the question. If you choose to do this, you may also want to discuss with the employee pay arrangements if they need to self-isolate or quarantine on their return (if they are unable to work remotely). You may also wish to discuss the practicalities of any required extended period of leave, such as booking an additional 10 days to cover the self-isolation or quarantine period, which will be a consideration if the employee is travelling to an amber or red list country.

Can we refuse a holiday request?

Yes, if the request is not made in accordance with your annual leave policy or adequate notice is not given. However, it is important to consider the reason for the request and why it has been made at short notice, so a common sense and consistent approach should be adopted. If you are unable to agree to the request because of a business need; for example, during busy periods, you are entitled to reject a request.

The key point here is that any decisions made in relation to granting or refusing leave requests should be taken even-handedly, so as to avoid any potentially discriminatory issues.

If possible, try to have an open discussion within the workplace about holiday plans to get an idea about who might want to take holiday and when, so you can gauge when the pressure points might be and to enable you to plan for these accordingly.

Could employees work remotely from abroad?

This is something that you could discuss with employees if they are unable to return to the UK and have the facilities to do so (for example a holiday home).

There are some specific considerations you will need to factor in if you are thinking about this as a possible solution, 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. In addition, there may be tax and immigration issues depending on the length of time the employee is working abroad.

If this is something you are considering, you should seek specific advice due to the complexities involved.

What if an employee wishes to change the leave they have already booked?

Given the constantly evolving position in relation to travel, it is not uncommon for employees to want to change their plans in line with developments in the rules. Whilst there may be a provision in your contracts of employment and/or annual leave policy, there is no statutory guidance on this. Acas has advised employers to take a flexible approach and, therefore, speaking to staff and explaining that it may not always be possible for them to cancel and rebook leave, but that you will accommodate any reasonable requests for a change of dates as far as operationally possible.

What to expect

The Government recently suggested that those who have received both doses of their vaccination may be allowed to return to the UK after foreign travel without being required to quarantine, however, the details of this have yet to be announced and it is unclear whether this will extend to all countries or just those on the amber list at the time of the announcement being made.

In addition, it is sensible for travellers to ensure that they remain up-to-date with the requirements of their destination countries in terms of testing and quarantine, as the conditions of entry are changing on a seemingly daily basis.

As above, the rules are fluid and are being reviewed at three-weekly intervals, with the next travel review expected on Thursday 15 July 2021.