Can employers prevent staff from holidaying abroad?

14 Jul 2021 By Jess Tancock

As the government eases international travel restrictions for fully vaccinated adults, Jess Tancock examines how firms can prepare for the staff going to amber countries

The government updated its guidance last week stating that from next week, fully vaccinated UK residents arriving from amber list countries will no longer need to self-isolate. While travellers will still be required to pay for a PCR test before and after, there is, of course, the risk that an amber country might move on to the red list while they are away. 

So what are some of the concerns this raises for employers and what steps can they take to manage a workforce in and out of quarantine?

From 17 May 2021, the UK government officially gave the green light for international travel to resume. This was coupled with the traffic light system, which reflects the Covid risk in different countries. 

Subject to ongoing review of local Covid-19 risks, people may travel to green list countries with minimal restrictions, including the removal of the need to quarantine on return. From 19 July, those countries on the amber list may still be visited without the need to isolate on arrival back in England, Wales and Scotland, unless the individual has not been fully vaccinated – they will need to quarantine for 10 days. The rules are currently different for travellers arriving in Northern Ireland, though similar measures are expected to come into force there on 26 July.*

The red list is, of course, off limits for the time being. And those who do travel to a red list country for an essential reason will have to pay to quarantine in a hotel.

While many welcomed the reopening of international travel, the changes introduced a new challenge for businesses. It is a legitimate concern for employers that they will have to deal with circumstances whereby an employee is required to quarantine following a holiday and therefore, potentially, unable to work. This is exacerbated by the fast-changing, unpredictable nature of Covid-19 variants. 

Portugal, for example, has already been moved from the green list to the amber list. The government has tried to mitigate these concerns by introducing a green watchlist. Destinations, including Madeira and the Balearic Islands, are included on this list, which acts as a middle-ground between the green and amber lists. 

Nonetheless, whether it be as a result of visiting an amber list country or being in a green list country when its status is changed, quarantine looks set to become a regular aspect of employee management. 

Can employers prevent employees from travelling abroad?

Employers have a right to decline holiday requests at the time that they are made. However, there is no absolute right to cancel someone's holiday further down the line if, for example, the employee intends to travel to an amber list country. If the government is allowing people to travel, how can an employer tell its workers otherwise? 

In short, they cannot. An employer is unable to forbid its employees from leaving the country in their own time, nor can they specify which countries their employees may visit. In fact, employers do not even have the authority to compel an employee to tell them that they are leaving the country during legitimate leave periods. 

So, what can a worried employer do? Clearly, employee management will be key and each industry will be different. Employers can retain the right to cancel a pre-booked leave period. The process for doing so should be set out in internal policies, but generally this simply requires giving notice (usually the same length as the requested leave, eg, five days' notice to cancel a five-day holiday) and having a legitimate business purpose for doing so. While untested in the courts, a business need to avoid workers being quarantined may amount to a legitimate business purpose. 

While an employer can cancel leave requests provided that the correct policies and procedures are complied with, as above, an employee is under no obligation to inform their employer that they are leaving the country. Further, cancelling an employee's pre-booked holidays is unlikely to be a popular move, particularly if that person is able to productively work from home while under quarantine. Indeed, it may cause considerable resentment and it is conceivable that cancelling would even lead to constructive dismissal or discrimination claims. 

The message being communicated to employees is of paramount importance. Honest discussions should be held with workers to explain the decisions being made. Ideally, if this is the route that they choose to take, employers should put in place a policy stating that leave requested for international travel will not be accepted and may be cancelled if discovered at a later date. While this may not effectively prevent employees from taking holidays, it will open the door to more prudent communication.

Can employees be required to work during quarantine?

What can employers do if an employee is returning from a country on the amber or red list and they are required to quarantine? Employers cannot prevent individuals who are required to quarantine from doing so, as this will be a direct breach of the Covid-19 regulations. 

If this means that an employee cannot return to work following a holiday, they must follow their employer's absence reporting procedure. Further, if an employee turns up to work when their employer knows they are required to self-isolate, their employer must send them home immediately.

However, if employees are able to work from home during a period of quarantine, they are able to do this as long as the employer agrees.

It is also worth noting that an employee who is required to quarantine without symptoms will not be entitled to receive Statutory Sick Pay, nor are employers obligated to pay them if they are unable to work from home. Many employees will have to take extra holiday or unpaid leave if they find themselves in this scenario. This fact should be clearly communicated to employees.

As is often the case, an employer's best recourse in handling these situations will be genuine communication and a willingness to compromise. Where an employee can work from home, there seems to be little incentive to disrupt morale by prohibiting international travel. 

Where this is not possible, the employer should be open and honest with its employees as to why they are making certain decisions. Even with this communication, employers should expect some pushback as more and more countries are added to the government's green list. 

Jess Tancock is an associate at Dentons

*Updated 15 July to reflect the decision that Wales will follow the same rules as England. Travel restrictions are subject to change. 

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