We have reached Step 3 in the UK government’s Roadmap back to normality. Non-essential foreign travel is allowed once again. This allows people in England and Scotland to go on holidays abroad to ‘green list’ countries. The obvious challenge for the ‘would be’ holiday maker is finding a popular “green” country that is attractive enough to want to visit, or take a chance on an amber country, where there may be less visitors and prices may be lower.
International travel is vital. It connects families who have been kept apart, boosts businesses and underpins the UK economy. This news will be welcomed by many but the increasing likelihood of people holidaying abroad presents challenges for employers trying to accommodate the needs of their employees and balance this against the health and safety of the workplace.
In this article we will address some of the most common queries from an employment law perspective regarding holidays and business travel abroad.
Updating your holiday policy
Given that restrictions have changed, employers should update their holiday policies to cover the following issues:
- Keeping the business informed on when and where employees travel to, from a health and safety risk management and contagion of infection perspective.
- Outlining the current government guidance on travel, including quarantine requirements.
- Explaining how periods of quarantine will be recorded for absence purposes.
- Whether periods of quarantine will be paid or unpaid if employees cannot work from home in quarantine, if not whether they will be deemed to be part of the holiday leave booked and therefore paid but reduce the annual leave entitlement, that would otherwise be available to utilise.
Employees needing to quarantine
Employees who visit “amber” or “red” countries are legally required to quarantine on their arrival back in the UK. Employers cannot require the employee to return to the workplace during this time.
If an employee is able to work from home during this period then they should be allowed to do so and receive their normal rate of pay, providing that the employer agrees to this. This may delay attempts by employers to reintegrate staff back into regular office working. But employers will have a hard time arguing that a job that was carried out from home during the numerous lockdowns cannot now be done from home for the quarantine period.
If an employee is unable to work from home, then the quarantine period should be discussed with the employee before authorising their holiday. Remember that employees request to take annual leave (unless your specific policies state otherwise) subject to approval. So this gives employers a chance to discuss the matters raised in this article before the holiday request is granted.
The common options for the quarantine period will be annual leave or unpaid leave, or a mixture of the two.
Annual leave only works if the employee has enough leave to cover the holiday and quarantine. If this is not possible, employees may be tempted to call in sick during this period in order to receive pay. Businesses will have to make their own assessments on the validity of these cases and employees will have to follow any sickness related procedures, including providing “reasonable evidence” of incapacity. This can include an isolation note from NHS 111, notification from the NHS or public health authorities if they are self-isolating because they have come into contact with someone with COVID-19 or a fit note as normal.
Also note that Statutory Sick Pay (SSP) is not available to those quarantining on arrival back in the UK without COVID-19 symptoms. Your updated policy should warn employees who are unable to work from home and without enough annual leave entitlement about the likelihood of not being paid during these quarantine periods.
Can you ask employees not to travel to certain destinations?
It would be difficult to justify a management instruction not to travel to certain countries as this would undermine the employee’s annual leave rights under the Working Time Regulations to leave for relaxation and leisure, as well as a right to a private life. Holidays being part of that right. One solution to this would be to encourage employees to only visit countries on the green list, perhaps by offering some incentives such as arranging for corporate discounts to access leisure and hospitality facilities in certain green countries.
Your policy could include a requirement to provide information of where they are intending to travel to, before holiday requests are granted.
Note that it could be risky to arbitrarily reject holiday requests. So you need to be consistent with your approach. The risk could be claims of indirect discrimination (e.g. nationality), breach of Working Time Regulations or, in the extreme, constructive dismissal.
From 17 May 2021, people can travel internationally from England without needing to have a reasonable excuse for doing so. So work travel is technically permitted.
Those travelling for business will still have to follow the particular requirements in place for the country that they are visiting, including the possibility of quarantining on arrival back in the UK.
If an employer is requesting the employee to travel, some agreement will need to be reached in terms of working arrangements and pay during this quarantine period.
In terms of whether this request would be reasonable, it very much depends on the Foreign Commonwealth Office’s (FCO) advice on travel to the country in question. It would not, ordinarily, be appropriate to require an employee to travel to areas, which the FCO has advised against travelling to.
To do so may breach the employer’s health and safety obligations, as well as opening employers up to a personal injury claim should the employee contract COVID-19 during their travels. Although, it may be reasonable to ask an employee to travel for work purposes to a country on the green list.
Ultimately, though, it very much depends on the advice at the time and the nature of the business. An employer must assess whether the work travel is necessary and appropriate. For example, could the business be conducted remotely?