Summer 2021: sun, sand and quarantine?

As UK government legal restrictions continue to ease in relation to domestic and foreign travel, employers now face the challenge of navigating through a summer of novel situations with employee holidays. This summer, travellers are likely to experience a bit of turbulence along the way!

The government has adopted a traffic light system for foreign travel with destinations categorised as green, amber and red according to the number of Covid-19 cases. Each category has a different set of rules and each destination is regularly reviewed; the rules are likely to change at short notice. Alongside the legal restrictions, destination countries will also likely have legal restrictions imposed on UK travellers.

Untaken holiday

Many employees have accumulated a lot of untaken holiday due to the various lockdown restrictions of the past year. The Working Time Regulations were amended in 2020 to permit the carry over of basic holiday entitlement (four weeks) over the next two leave years due to the pandemic. This amendment is to accommodate employees who were unable to take holiday during the pandemic where it was difficult to take time off e.g. in the health and care sector.

Employers will need to consider how to manage a workforce’s accumulation of holiday from the past year. They should continue to encourage employees to take holiday, even if they are unable to travel, to promote health and well-being amongst the workforce. Encouraging holiday to be taken throughout the year will also assist in managing a steady level of workforce in the workplace rather than experiencing a surge of holiday requests during periods of fewer travel restrictions.

Employers should be open and communicate with employees about how holidays will be managed over the coming months to ensure staff expectations are effectively managed and understood.

Last minute holiday requests

As the government regularly reviews the travel traffic light system, some employees may take advantage of the changes by requesting holiday last minute, either abroad or in the UK. Employers should consider their position on last minute holiday requests; if the workforce has accumulated a lot of holiday, it may be beneficial to allow last minute requests.
An employer is permitted to refuse a holiday request if adequate notice is not provided. Employers can also refuse holiday based on the business’ operational needs, for instance if they would be unable to find cover at short notice. It is important to ensure that the approach to last minute holiday requests is consistent for all employees to avoid potential discrimination claims.
Do engage with employees to establish when and where employees may wish to take holiday to pre-empt and resolve any holiday request issues at an early stage.

Remote working abroad

As many employees continue to work from home this summer, employers may receive request from employees to work remotely abroad, particularly where an employee is unable to return home after a holiday.

In these circumstances, employers will need to consider a number of factors to ensure they are legally compliant. Factors to consider include:

• Corporate tax liability
• Employer liability
• Right to work
• Working hours

It is important employers adopt a fair and consistent procedure for all employees to avoid potential discrimination claims.

Changing holiday plans

Due to the changeable nature of the travel traffic light system, employers should anticipate requests from employees to change or cancel their holiday dates. During the pandemic ACAS has advised employers to be flexible by permitting changes to holiday dates.

Employers should be cautious of navigating requests for changing holiday plans and it is advisable to review on a case by case basis. In particular, some employees may be travelling abroad to see family, so forcing them to take holiday when they can no longer travel may leave them with insufficient holiday to visit on another occasion. Refusing a request to change holiday dates could be a potential breach of trust and confidence.

Under the Working Time Directive, if it is within an employee’s four-week basic entitlement, they are permitted to cancel their holiday and take at a later date if they are unwell.

Permitting a change to holiday dates where a destination has been recategorised may also be beneficial to an employer – for instance, where the employee would be absent for a longer period of time due to rules requiring individuals to self-isolate and quarantine.

Travelling to an amber or red destination

If an employee knowingly travels to an amber or red destination and is aware that they will be unable to attend work on their return home, this can be grounds for a disciplinary offence. However, employers should be cautious of such a robust response particularly as employees may have travelled to the destination whilst it was categorised as a green destination. It may be more sensible to permit an employee to take unpaid leave or extended holiday in this situation.

This summer, it may be beneficial to engage with employees to enquire as to their holiday destination to enable both parties to plan accordingly and ensure the position is clearly understood.

There is no doubt that this summer will be challenging for both employers and employees but communicating and engaging with employees from an early stage will help to ensure employees are aware of an employer’s position on holidays. It might also be worth re-assessing annual leave policies to take account of the wide variety of situations we cover here.