With the holiday season fast approaching, and with this year being very different, what are the holiday issues that employers may face.
As restrictions start to ease, many employees are going to be eager to get away. Some staying in the UK, whilst others may venture overseas on foreign travel.
This article considers some of the issues around managing holidays in the business and holiday requests that employers are likely to face.
Managing accrued but untaken holiday entitlement
Last year, the Working Time Regulations (WTR) were amended to allow employees to carry over up to four weeks (20 days) of annual leave into the next two leave years. This is in circumstances where it has not been possible for staff to take leave as a result of the pandemic.
Due to workload or staff being on furlough, employees may have built up a large amount of holiday over the 2 years. As we come out of lockdown, this large accumulation of leave, will present a problem for some businesses.
If you are in this situation, you should firstly be encouraging staff to use the leave. Alternatively, you can require staff to use the leave (or enforce it) by giving staff double the notice as to the leave you use them to use. For example, if you wish 1 week of leave to be taken, you need to give 2 weeks’ notice.
Payment in lieu of accrued but unused statutory holiday is only permitted on the termination of employment.
Employers should now be reviewing annual leave entitlements across the business and deciding how to manage remaining leave.
Requests to holiday abroad
As restrictions relax, many people are now considering overseas travel. Not just to holiday, but also to travel to visit family they have not seen for a while.
The UK are currently operating a ‘red, amber and green’ system to categorise countries and indicate safe international travel. This system sets out the rules on return to the UK. Countries are moved in and out of the ‘traffic light categories’ depending upon their COVID-19 cases and vaccination programme.
As at the time of writing, the Government is advising people not to travel to amber or red countries.
Depending upon which list the country is, your employee will need to follow a set of rules. When returning from ‘green list’ countries, employees will not be required to quarantine on arrival in the UK. They will be required to fill in the passenger locator form, provide a valid notification of a negative test result prior to travel and take a sequencing test on day 2 after arrival.
When returning to the UK from ‘amber list’ countries, required to fill in the passenger locator form, provide a valid notification of a negative test result prior to travel, quarantine at home for 10 days, and take a test on day 2 and day 8 after arrival. Passengers will also have the option to opt into Test to Release at day 5.
If individuals are returning from a country on the red list, in addition to the green and amber-list requirements, they must pay to quarantine in a hotel for 10 days. There is no option to participate in the test and release scheme.
Therefore, if your staff are travelling to (or through) an ‘amber or red list’ country, they will be required to quarantine and this may affect their attendance at work.
How to deal with quarantine and self-isolation requirements
If your employee normally works from home, or is currently doing so on a temporary basis due to pandemic, then they can continue to do so whilst on quarantine.
If they do not normally work from home, but can do so in order to quarantine, then they can continue to work and be paid normally.
However, if an employee cannot work from home, what are the employer’s options?
Option 1 – the employee can extend their holiday, with the additional quarantine period coming out of their overall leave entitlement.
Option 2 – the employee could take unpaid leave.
Option 3 – a combination of options 1 and 2.
If an employee knowingly takes the time off and travels to an amber or red listed country, thereby making themselves unavailable for work on their return, this could be regarded as a disciplinary offence. However, if they can work from home during the quarantine period, it may be difficult to justify taking disciplinary action or withholding pay by making them take unpaid leave.
Have a clear Annual Leave Policy
To avoid any confusion or challenges when staff travel overseas, it is important to inform your staff of the policy with regards to booking holiday and taking overseas holiday.
Have a clear Annual Leave policy and set out the rules on booking leave and travel overseas.
When staff book leave, ensure you ask them where they are going and if they are traveling overseas to a red or amber listed country, how they intend to deal for the quarantine period.
Ensure you are fair and treat everyone equally when managing leave requests and deciding whether to approve leave or not.
You may decide to use a ‘first come, first served’ basis. You may decide to set out how many employees can be off at any one time (to avoid a shortage of staff) and apply this either business-wide or team-wide.
You may wish to consider a leave chart (either on the wall or electronically) so employees can clearly see what leave periods are and are not available to book.
What if the country is recategorised?
Last Summer the status of some countries changed, often at short notice, and some employees were caught out. How should you deal with a situation where a member of staff is in one of those countries and therefore unavailable for work?
Last week, Portugal was decategorized from green to amber, with many holiday makers needing to return to the UK and quarantine.
In this situation, it will be difficult to justify disciplinary action when the individual cannot return to work.
The best approach is to discuss it with the individual and determine how the quarantine period will be dealt with. Can they work from home, or will they be required to use more paid leave or a period of unpaid leave.
Please note that Statutory Sick Pay (SSP) is not available in these circumstances.
If the recategorisation occurs after the employee has booked their holiday, but before they travel, employers will need to ensure they discuss this with the individual (see below on Dealing with requests to reschedule or cancel holiday requests).
Dealing with last-minute holiday requests
The UK government has indicated that it will review the traffic light system on a three-weekly basis. With countries being categorised as green and the successful continuation of the vaccine rollout, this may result in employees being keen to travel overseas and requesting a last minute holiday. How should employers manage this situation?
Your employment contracts or Staff Handbook should set out the rules around booking holiday, specifically how much notice is required. The statutory default position is that employees (and employers) must give twice the notice as the holiday requested. For example, if someone wants to take 5 days off, they must request it at 10 days notice from day 1 of the holiday date.
Whichever method you use (contract or statutory) it is at the employers discretion as to whether the holiday request is approved or not. Due to operational reasons, it may not be possible. There may already be too many other employees off at the same time. If this is the case, employers can refuse the request.
Dealing with requests to reschedule or cancel holiday requests
An employee may no longer want to take time off they had previously booked, for example because their holiday has been cancelled or the country they had planned to travel to had been recategorised.
Once employees book their leave from work and have it approved, they have no automatic right to cancel or reschedule their booking – the employer can insist they still take the time off.
The exception to this is if they are on long term sickness absence or commence a period of family leave, such as maternity or adoption.
It is recommended that employers are flexible and the employer and employee should discuss it.