With plans to re-open foreign travel being reviewed on 17th May, your employees may be hopeful that there is a possibility of going abroad during the summer months. The transport secretary, Grant Shapps has confirmed that an NHS app will allow Britons to demonstrate that they have received their COVID-19 vaccine or tested negative for the virus before traveling abroad.
In light of these current changes, we understand that employers might receive questions regarding employee holiday entitlement, especially from those planning to travel abroad. With that in mind, we’ve compiled our most frequently asked questions below.
1. Can we ask where the employee is going on holiday before approving their leave request?
While we consider that you can ask staff where they are going on holiday, we do not consider that you can use their response as a reason to reject their holiday request, as this could be seen as discrimination on grounds such as race or nationality.
In the event that the employee is seeking to travel to a country that is on the Welsh Assembly Government Red or Amber list, or Government Home Office if in England, we would suggest that you bring this to the attention of the employee so they are fully aware of any restrictions, such as the need to quarantine for 10 days.
2. Can we tell staff not to go abroad on holiday?
Employers could consider instructing employees not to travel to areas where the government advice is to avoid travel. However, as lockdown restrictions are lifting, it is questionable whether this could be regarded as a reasonable management instruction given that it dictates what an employee can do with their leisure time, which is their own, rather than how to do their job.
Therefore, while an employer can encourage employees not to go abroad, or travel to specific countries, we do not consider that an employer can impose a blanket ban as such. The reason for this is that any blanket ban could be seen as discrimination on grounds such as race or nationality.
3. Can we cancel holiday leave to prevent staff travelling abroad?
No. We do not consider you can cancel a holiday to prevent staff from travelling. To do this could be discriminatory, or a breach of contract.
Instead, if an employee is seeking to travel to a country that is currently listed as Red or Amber, then our advice would be to bring this to the attention of the employee so they are fully aware of any restrictions, such as the need to quarantine. It would be best if this is confirmed in writing (letter or email) to the employee so the employer has a record.
4. Do our employees have to tell us if they are quarantining?
Yes. An employee who is unable to attend work should provide details of the reason why they are unable to attend work to their employer, otherwise it will be unauthorised absence.
Further, it may be reasonable for an employer to be clear that any employee who travels overseas will need to use annual leave during any period of quarantine on the basis that any such absence will otherwise be regarded as unauthorised. This may well have the effect of discouraging employees from making overseas trips if they are required to use their annual leave for both the trip itself and the quarantine. If this is done, it needs to be communicated to employees in writing.
5. Can we ask our staff to continue to work during quarantine?
First of all, this is dependent on if the employee is fit and well to work.
If the employee is fit and well, then if an employee who has to quarantine due to travelling abroad can work from home during their self-isolation, and their employer is happy for them to do so, they should continue to be paid as normal.
6. Do we have to pay staff if they can’t work during a period of quarantine?
If an employee is required to quarantine due to travelling abroad, and cannot work during their 10-day quarantine, the position in respect of pay is not clear, as there is contradictory case law.
Arguably an employee who is not able to work and so the implied right to be paid, which may be relevant if there was no legal requirement to self-isolate, would not apply. However, it may be arguable that, where an employee is subject to a restriction such as quarantine, their ability to work is not affected. In North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ 387 the Court of Appeal held that, if the employee is ready and willing, and the inability to work is the result of a third-party decision or external constraint, any deduction may be unlawful depending on the circumstances.
Further, it is also unclear whether they are entitled to Statutory Sick Pay (SSP). SSP is currently payable for those employees who are in self-isolation (not quarantine) as ‘… it is known or reasonably suspected that the individual is infected or contaminated by, or has been in contact with a case of, a relevant infection or contamination’. It is doubtful that an employee could reasonably argue that travelling (particularly from a country with a low rate of infection) would amount to a reasonable suspicion that they have come into contact with someone infected with COVID-19, and in turn be entitled to SSP.
As stated above, employers could confirm that any employees travelling abroad will need to use annual leave during any period of quarantine on the basis that any such absence will otherwise be regarded as unauthorised. Again, as stated above, this may well have the effect of discouraging employees from making overseas trips if they are required to use their annual leave for both the trip itself and the quarantine.
This is correct as at 26th April 2021, however, should you have any questions, please contact our Employment Law team on 02920 853794 or at tcms@thomas-carroll.co.uk.
