International Holiday Requests and How To Deal With Them…
25th May, 2021
In our recent HR Lunch Club, Paul Hennity and Anjali Brown from the Employment Team at Aaron & Partners provided expert advice and practical tips to help employers understand how they should handle holiday requests as staff look to book holidays abroad.
We set out some of the key questions and advice here.
Q1. What are the new government rules in England around international holidays?
The Government has introduced the traffic light system to govern international travel. As the name suggests, countries or territories are colour coded as either green, amber or red based on the risk of catching Covid-19. The classification will affect the rules an individual needs to follow upon their return to the UK, and, importantly for businesses, the requirement to quarantine.
Countries listed as Green: An individual is not required to quarantine unless they have tested positive for Covid-19 or the NHS Track & Trace informs them that they have travelled with someone who has tested positive, in which case they would need to quarantine for ten days.
Countries listed as Amber: An individual must quarantine for ten days upon their return to the UK either at home or the place they are staying at (if different to their home address). There is an option to shorten the quarantine period if they pay privately for a second Covid-19 test in line with the ‘Test to Release’ scheme. To be eligible, an individual must take the test on the 5th day of quarantine and must reside in England. Whilst travelling to amber listed countries is legal, the Government has strongly advised that people should not go for leisure purposes.
Countries listed as Red: An individual would need to quarantine for 10 days at a government-approved hotel which employees must book and pay for in advance. Only UK nationals, UK residents or Irish citizens can return to the UK from a red-listed country. As these countries have the highest risk from Covid-19, unsurprisingly the Government advice is to not travel except in the most extreme circumstances.
Q2. What practical considerations should employers have in mind when approving holiday requests?
The main issue that a business needs to consider when approving annual leave requests for international holidays is whether an employee would need to quarantine on return from the country that their employee will be visiting. The traffic light list is not static but reviewed and amended every three weeks in line with the rate of infection. This may mean that by the time an employee is set to go on holiday, or upon their return to the UK, the country has been re-categorised and subsequently the rules have changed. As an employer, you need to be aware of these periods so that you can manage the effect of any employee being out of office during this time potentially unable to work (if they are unable to work from home) and understand your obligations when it comes to paying them.
Employers can consider paying for the second Covid-19 test to reduce the quarantine period for employees who have returned from amber listed countries. This measure could be brought in as part of your workplace policy to minimise the potential impact on the business. As health data is categorised as sensitive information, extra precautions would need to be put in place in line with the business’s data protection obligations.
Employers may also consider updating their policy/position on accepting holiday requests to clearly set out when a holiday request would be approved or rejected. Beneficially this will ensure employers are consistent with their approach and ensure managers are following a clear and centralised policy rather than making their own decisions on an ad hoc basis. Despite this, we would always advise some room for discretion as the circumstances around why a person is traveling may not be the same for everyone.
Q2. Am I required to pay staff for quarantine periods following their holiday?
Sick Leave & Pay: if an employee is unwell with Covid-19 after returning from holiday, employers should treat this as any other period of sickness and follow the sickness procedure set out in your sickness policy or as stated in the employee’s contract of employment. The employee would be entitled to statutory sick pay or company sick pay as usual.
Working Remotely: depending on the nature of the employee’s role and the nature of the business, an employee can work from home during the quarantine period. Employers may need to reorganise workload to ensure that the employee can effectively work from home during this period. For example, in-person meetings would naturally need to be held virtually to accommodate for the employee’s absence.
Working from home may not always be possible and it is up to the employer to decide whether this would work for their business. If an employee can perform part but not all of their job role at home, employers may exercise their discretion and temporarily allow individuals to operate on a reduced workload until they can physically attend the workplace. Before making this decision, it is important to consult and agree with the employee beforehand as otherwise, this could be a potential breach of contract.
Grant further annual leave: employees can request to take annual leave during the quarantine period and be paid as normal. Employers should be mindful that due to the length of the quarantine period, the employee may have exhausted their annual leave entitlement for that holiday year and cannot request further annual leave. In this case, the employee can treat any subsequent time off as unpaid leave. Your business may also have a policy in place which would prevent an employee from taking more than 10 consecutive days off therefore an exception may need to be made to allow an individual to use up additional annual leave over and above the usual 10-day restriction.
Take unpaid leave: an employer could allow staff to take unpaid leave where the employee would not be paid for the ten days. It is advisable for employers to explore the other options before agreeing to unpaid leave during this time to reduce the risk of employment claims. If these other options are not possible then unpaid leave should be reviewed.
Q3. Can I require staff to cancel or change holidays?
Employers are entitled to require employees not to take statutory annual leave on particular dates under the Working Time Regulations 1998 provided they give sufficient notice. However, this can be very risky to do so if an employer has already consented; an employee may be out of pocket and expect their employer to reimburse them. Further, an employer who unreasonably cancels or disrupts holiday plans may well find that they are in breach of the implied term of mutual trust and confidence. This may seem particularly unfair to an employee if the requirement to quarantine was not in place when the employee booked the time off. It is recommended to check any contractual provisions on annual leave in place and consider the business’ holiday policy before taking any action.
This has been a difficult couple of years for many therefore we would advise employers to use their discretion and be as flexible as possible during this time. A balance must be struck between allowing employees to take time off as part of their mental and physical wellbeing against ensuring that this will not cause negative repercussions on the business from having staff away for a considerable amount of time. ACAS provides helpful tips and encourages employers to (1) talk about plans to cancel holidays as soon as possible; (2) listen to any concerns; and (3) welcome and suggest ideas for other options before taking action.
Q4. Can I require staff to take holidays on certain dates?
An employer can require their employees to take annual leave at particular dates provided that they give sufficient notice. As a minimum, the length of notice should be twice the period of leave that they are requesting. To give an example, if you wanted a member of staff to take two weeks off in August you should give four weeks’ notice in advance from the start date. We would advise giving as much notice as possible and setting out your decision in writing to avoid any potential disputes.
Q5. What is the new carry over holiday rules?
The Government has now amended the Working Time Regulations 1998 to allow employees and workers who have been unable to take holiday due to Covid-19 to carry over up to 4 weeks of unused leave to be carried into the next 2 leave years, easing the requirements on business to ensure that workers take the statutory amount of annual leave in any one year.
The change is primarily aimed at ensuring employers affected by Covid-19 have the flexibility to allow workers to carry over leave at a time when granting annual leave could leave them short-staffed in key industries, such as food and healthcare. However, it appears it may also apply to staff who have been put on Furlough Leave and therefore have been unable to take their leave. The test to apply is whether it was not ‘reasonably practicable’ for an employee to take some or all of the leave to which the worker was entitled as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society).
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