What are the current holiday rules and what should employers do if their staff have to quarantine after taking holidays abroad?
Through the summer of 2020, many employers were grappling with the sudden addition of international destinations to the quarantine list. We had all hoped that with the Government’s traffic light system, that wouldn’t be replicated in 2021. However, we have continued to see frequent changes to the way travel restrictions operate, including the sudden removal of Portugal from the ‘green list’ on 3 June 2021 leaving many tourists scrabbling once again for any means of getting home before the rules changed.
The traffic light system
Government advice under the traffic light system differs according to level:
- At the time of writing, the advice remains not to travel to both red and amber list countries. However, this will change for amber list countries from 19 July. From that point, the Government will no longer be recommending against travel to amber list countries.
- Anyone arriving in England from a red list country will need to have a Covid test before travel, quarantine in a managed hotel for ten days and have two Covid tests on their return on day-two and day-eight.
- Anyone arriving in England from an amber list country:
- prior to 19 July will need to have a Covid test before travel, quarantine at home for ten days and have two Covid tests on their return on day-two and day-eight.
- from 4am on 19 July onwards will need to have a Covid test before travel and have a Covid test on their return on day-two but will not need to quarantine on return or take a Covid test on day-eight if they have been fully vaccinated. Vaccination status will be demonstrated through the NHS Covid Pass, which is available in digital or paper format two weeks after having a full course of the vaccine. Anyone who is not fully vaccinated in line with these rules will still need to follow the guidance for returning prior to 19 July.
Note: at the time of writing, the changes to returning from amber list countries do not apply to those returning from France, even if fully vaccinated. The rules for prior to 19 July should therefore still be followed. - can sign up for the Test to Release scheme, which involves paying for a private test on day-five which, if negative, will remove the requirement for further quarantine.
- Anyone arriving in England from a green country does not need to quarantine but must still take a Covid test before travel and a day-two test on their return.
There are no restrictions on returning from Ireland, the Isle of Man and the Channel Islands.
As it stands, there are still a limited number of countries on the green list and the Government website is clear that countries can be moved between lists without warning. As restrictions continue to be eased, it is likely that we will start to see increasing amounts of overseas travel so if your employees choose to go abroad, what might these rules mean for you and them?
Does it make any difference if our employees have been vaccinated?
Yes, but only from 19 July and only for those returning from amber list countries who have been fully vaccinated. Otherwise, the rules apply equally whether or not your employee has had one or both doses of the vaccine.
Will employees who quarantine be entitled to statutory sick pay?
The rules are clear on this – employees who must self-isolate after returning from abroad are not entitled to statutory sick pay.
Will the quarantine period be paid or unpaid?
If the employee can work from home
If an employee has to quarantine after returning from abroad, but can work from home (or a quarantine hotel) either in their own role or an adjusted role, they should do so on full pay. However, many roles in the workplace cannot be carried out remotely, so this may not be an option.
If that is the case, the situation is not so clear cut.
If an employee is unable to work from home
If an employee is required to quarantine, do not ask them to return to the workplace. Doing so will amount to a criminal offence and if an employee who should be quarantining presents for work, you should send them home immediately.
If an employee is not able to work, arguably the right to be paid would not apply. However, the employee may say that their inability to work is because of a third-party decision or external constraint. If an employee successfully argued that their inability to work is because of an unavoidable, external impediment, a decision not to pay could be unlawful.
That argument is likely to be strongest where an employee travels to a green country and it is moved to the amber list whilst they are away, without warning. However, if a trip is booked or taken to an amber or red list country, or a country on the amber or red watchlist, therefore knowing that there would be a period of quarantine at the end, it may be difficult for an employee to argue that this was a factor over which they had no control.
Can employees be asked to cancel holidays?
In theory, yes, but there is a risk that employees may seek damages from their employer if they lose money as a result. Further, if an employer cancels holiday at very short notice they may be in breach of the Working Time Regulations. Regulation 15 requires that employers must give the same notice to cancel as the number of days’ holiday.
Cancelling holiday or restricting where employees can take holiday could also, at its worst, damage the relationship of mutual trust and confidence and result in a constructive dismissal argument so taking this step should be accompanied by an explanation as to why you are requiring them to cancel their holiday.
It may be risky to require an employee to cancel a foreign holiday however there would be a substantially lower risk in implementing a policy saying employees cannot book a foreign holiday provided it would not result in them losing money (or not missing some key family/religious event or medical treatment).
Do employers need a policy to cover their approach?
Drafting a policy and sharing it with staff is a good idea and many of our clients are doing this.
Assuming employees cannot work from home in quarantine, we would recommend a policy which:
- allows for pre-booked holidays to be taken but on return the employee would be on unpaid leave; and
- requires employees to obtain permission from their manager before booking travel abroad.
Asking employees to take unpaid leave is recommended because requiring them to take holiday for a further ten days might discourage them from taking holiday and result in them not having enough leave for the rest of the year, which could breach the Working Time Regulations. Remember if you do require an employee to take annual leave, you will again need to comply with the Working Time Regulations notice requirement – in this case, twice as much notice as the holiday being taken – or any other notice requirement that might be set out in your contracts.
We would recommend allowing employees to discuss their plans with their manager, rather than having a blanket ban on booking international travel, as the employee might need to travel for religious purposes or to obtain medical treatment or for urgent family reasons and a ban could lead to financial hardship. In discussion with their manager, you can make it clear that they will need to follow the quarantine requirements in place and explain your policy around payment during quarantine.