The restrictions to travel aboard were lifted from 17th May 2021 and although there are no longer a legal prohibition to travel aboard the Government have introduced a traffic light system. Countries are placed under red, amber, and green categories with different rules applying to each colour category, this is reviewed by the Government every 3 weeks and could result in the colour code for a particular destination changing at short notice.
The Government advises against all travel to countries on the amber and red lists (1) further advises against all non-essential international travel to some countries and territories (2) and recommends that members of the public check the country page on Government website for travel advise for that country (3).
Where you have travelled aboard, the Government guidance explains that before you are able to enter the UK you must:
“Take a COVID-19 test up to 3 days before departure. You will need to show a negative test result when you arrive in the UK, including if you are returning home. Read further information on testing for travel to England, Scotland, Wales or Northern Ireland from abroad, fill in and submit your passenger locator form in the 48 hours before you arrive in the UK.
If you are returning to England from a country on the red list, or you have transited through one in the past 10 days, you must book to stay in a managed quarantine hotel; on the amber list, or you have transited through one in the past 10 days, you must book COVID tests under the quarantine rules for arriving into England; on the green list, you must book a day 2 COVID test” – (2)
In light of the above, where an employee is returning from an amber destination then they will need to isolate in their homes for 10 days (or for at least five days if they follow the government’s Test to Release scheme), unless an exemption applies to them.
Where an employee by agreement with the employer can work remotely from home or at a quarantine hotel (red list) then that does not give rise to any significant employment issues but for employees who cannot work remotely, their extended absence from work could have an impact on the employer’s business. Also it is an offence for an employer to knowingly allow an employee to breach a legal requirement to self-isolate.
Holiday requests
Because of the above and the fact that in England the complete easing down of lockdown has been extended to a further 4 weeks from 21st June 2021, it is prudent for employers to plan ahead and make their employees aware of what processes or policy the employer will follow. An employer may decide to enquire where an employee is travelling before approving any holiday request.
Although having a blanket ban on holidays aboard may not be appropriate as it could indirectly discriminate against certain protected groups who, for example need to make a trip aboard for religious reasons or see unwell family members but the employees must be made aware that holidays requests may not be approved for certain periods in the holiday year by giving sufficient advance notice and if there is no holiday policy in place over approval of holidays, to rely on the Working Time Regulations 1998.
In deciding whether to approve holiday requests for going aboard, employers need to balance their employee’s mental health, well-being, and welfare as a change of culture, scenery and guaranteed sun could help employees’ mental health after a long period of lockdown and any refusal on holiday request has to be fair, consistent and non-discriminatory, taking into account the employee’s personal situation and reasons for requesting the leave.
Green list countries
Where holidays are approved and the destination falls in green list but then the destination goes into amber or red and the employee wishes to cancel the holidays or reschedule later on in the year an employers could justify refusal of such a request on the basis of staff cover and to avoid the accumulation of excessive annual leave later in the holiday year. But the company should consider the need to balance out matters if this would sour good employer / employee relations and be subject to a disgruntled difficult employee who goes off sick with work related stress.
Where holidays have been approved but the employer wishes to cancel those approved holidays, in theory under reg.15 of the Working Time Regulations 1998, an employer can require an employee not to take annual leave on particular days by giving the employee notice of at least the same length as the period of leave to be cancelled; but where an employer cancels a period of leave without a clear business reason and as a consequence the employee cannot go on a booked holiday thus suffers a foreseeable financial loss, the employer could face a claim for constructive dismissal where applicable as being in breach of the implied duty of mutual trust and confidence.
To avoid complications and uncertainties a clearly defined written holiday policy should be in place ensuring that the policy is fair and reasonable and that it does not breach any protected characteristics rights that the employee may have.
The article is for general information purposes only and should you require any further assistance on the matter please do not hesitate to call our advice-line team on 01455 852028.
Sources:
(1) https://www.gov.uk/guidance/red-amber-and-green-list-rules-for-entering-england#stay-up-to-date
(2) https://www.gov.uk/guidance/travel-advice-novel-coronavirus
