We’re all going on a summer holiday. Or are we?
Many employees currently have significant amounts of accrued annual leave, and many will seek to take holidays over the summer period. Given the ever changing traffic light system for those travelling abroad, what issues may employers face?
The Working Time Regulations were amended in 2020 to allow employees to carry over up to four weeks of annual leave in the next two leave years where the pandemic has rendered it “ not practicable” to take leave.
Employers do not need to notify employees that they can carry over holiday if they cannot take it, but nor does an employee have to say that they will be carrying it forward.
Employers should bear in mind that, given payment in lieu of unused statutory holiday is only permitted on termination of employment, employees cannot buy out annual leave. In addition, employees should be encouraged to take annual leave for wellness reasons. For this reason some employers have chosen to require employees to use a proportion of their annual leave by a set deadline, often the end of the summer.
So what if employees use some of that annual leave entitlement travelling abroad?
The traffic light system in the UK categorises countries into green, amber and red in terms of return to the UK from these countries. Many countries on the list do not permit entry to UK residents.
Travel to a country on the green list requires travellers to complete a locator form and take a test at their destination before returning to England. They will also need to take a PCR COVID-19 test on or before day two after their arrival in England. Assuming the test is negative, there are no quarantine or self-isolation requirements.
In addition to the green-list requirements, individuals returning from an amber listed country will have to self-isolate at home for ten days, assuming they have a negative PCR test on days two and eight after their return. It may be possible to participate in the ‘test and release’ scheme from day five.
If individuals are returning from a country on the red list, in addition to the green and amber-list requirements, they will have to pay to quarantine in a hotel for ten days. There is no option to participate in the test and release scheme.
The recent recategorisation of Portugal from green to amber resulted in travellers facing unexpected quarantine and self-isolation restrictions. Holiday policies should now envisage such a position. Recategorisations were common last summer, and as such, some employers are taking a firmer approach in these cases, not merely where the change in category occurs before travel but after booking. Working from home, unpaid leave or extended holidays are an option in these cases. However some employers are choosing to treat such scenarios as a disciplinary offence as the employee has chosen to make themselves unavailable for work, based on the likelihood of changing categories. However, disciplinary sanctions will be harder to justify where the employee can reasonable work from home.
Employees may also wish to book or cancel annual leave at short notice, when either watching the travel list for opportunities, or following a recategorisation .Employers should review what their holiday policy states in relation to notice to be given. Unless the contract says otherwise, the statutory position is that employees must provide twice as many days in advance of the first day as the number of days holiday requested: for example, ten days’ notice of a five-day holiday. If feasible, you may wish to allow holiday requests at short notice if you know there is a large amount of accumulated holiday within your business. Additionally, this may be an opportune time to review your contracts and holiday policies.
Employees do not have a legal right to cancel and reschedule holidays once booked unless in cases of sickness or family leave or as detailed in an employment contract. However, ACAS guidance on holidays during the pandemic recommends flexibility.
It would be sensible to advise employees of the policy on rescheduling holidays, in the event an employee has COVID, is obliged to self-isolate and cannot work from home or because a holiday needs to be cancelled due to travel to the destination being recategorized.
Employees who are sick have the right to cancel a holiday and reschedule it, so employees with COVID may be entitled to reschedule a holiday. This applies to the four week statutory entitlement only.