Can employers stop employees holidaying in amber list countries?
26 May 2021
With effect from 17 May 2021, people in England have been allowed to go on holiday to a limited number of foreign destinations which the Government has deemed to be on their green list. People who do so can return to England without the need to have any form of quarantine, so it is almost like the pre-Covid days, other than you must take a Covid test within 2 days of returning. In contrast, if a person goes on holiday to a country on the Government’s amber list, then they must self-isolate for 10 days upon their return, as well as having Covid tests. This also applies to people who travel to countries on the green list and who are then contacted by the NHS test and trace system to notify them that they have travelled with someone who has tested positive for Covid.
So where does this leave employers? In the days before Covid, you knew that if someone was going abroad for a fortnight, then, in the absence of unforeseen illness or accident, you could expect them back at work after the 2 weeks. Now, if someone goes to a country on the amber list for a fortnight, then they will have to self-isolate for 10 days on their return. If they can do their job from home, then that may not be a problem, but if they need to attend a workplace to perform their job, then it means that they will be off for well over 3 weeks. The rules relating to holiday entitlement are governed by the Working Time Regulations, and, not surprisingly, they are silent on the issue of self-isolation. Does the period of self-isolation count as part of the holiday if people cannot work, or what is it? It is not part of the holiday, unless of course the employee books it off as holiday, but it is also not a period of certified sickness. It would therefore be a period of unpaid leave, unless of course the employee can work from home.
Dealing with requests for amber list annual leave
But can the employer refuse an employee’s request to take holiday if they know they are going to an amber list country? The starting point is no – employers cannot tell employees where to go, or not go, on holiday. There is also an obligation to provide employees with a minimum of 5.6 weeks’ annual leave (for a full-time employee). However, what employers do have is some control over when holiday is taken. Under the Working Time Regulations employers can require an employee to take holiday, but they also have the ability to cancel a period of annual leave if they have a legitimate business reason and give the employee at least as much notice as the length of holiday they are cancelling. That begs the question of whether the fact that an employee would be required to self-isolate, and therefore be away from the workplace for longer, would be considered to be a legitimate business reason.
Needless to say, there is no case law on the point as the rules are so new, and by the time there is, the requirement to self-isolate may well no longer be in place. Our view is that it will depend on the facts. Factors which may influence any decision include the size and resources of the employer, the impact that an employee’s enforced absence to self-isolate has on the business, and whether the employee really cannot work from home. For some roles, for example shop workers, the answer to the last question is obvious, but with others there may be dispute. Employers will also need to consider the impact on employees of cancelling their holiday – it is hardly likely to have a positive impact on morale!
Discussion with employees
The situation is tricky, and probably best resolved by honest dialogue between the employer and employee. Hopefully the requirements to self-isolate will only be in place for a relatively short period of time, so the question will soon be academic.
If you are an employer dealing with issues around holiday requests or anything else arising out of the coronavirus pandemic, then we can help. Please call us on 01243 836840 for a no obligation chat, or email us at [email protected].