Legal

How the latest travel restrictions could impact holiday requests

13 Oct 2021 By Kirsty Thompson

With the rules for foreign travel changing once again, Kirsty Thompson looks at how employers can handle this contentious issue

With the ever-changing travel advice over the past few months, how to handle annual leave requests from employees has become a bit of a minefield. The rules changed once again on 4 October and there are now just red and rest of the world (ROW) lists, with amber and green no more. 

Under the new rules, double-jabbed travellers don’t need to self-isolate when returning from ROW countries, but those that have only received one jab or are unvaccinated against Covid do. This makes the rules for unvaccinated travellers even harsher than they were – previously those returning from green list countries did not have to isolate.

Moreover, the summer has shown us that there is always the potential for countries to drop on to the red list with a moment’s notice, so knowing how to handle employees who have to quarantine has become a necessary part of HR advice. 

The issue will remain a consideration for at least the next few months, with employees who didn’t travel over the summer trying to make a judgement call about when their preferred destination would appear to be stable in terms of its ROW status, weighed against the risk that autumn or winter transmission surges might result in a quick move to red.

The main question being asked by clients is can they refuse holiday requests to people who will have to quarantine when they return from abroad? Our advice has been that imposing a blanket ban is not a good idea as it could create discrimination claims. 

The preceding question is of course whether an employer even has a right to know where an employee intends to go on holiday. This might normally be a question in casual conversation, but wouldn’t form part of any formal approval process. However, in the current circumstances, our view is that this is a legitimate question that employees can be required to answer, given the operational impact of different holiday locations. Some employers might take it further than just asking the question and also ask for proof of the answer.

The next issue is what happens to the time when an employee needs to quarantine or isolate? There are several options, but employers should have employee relations in mind when considering what to do. The simplest solution, where the job permits, is to allow the employee to work from home or their quarantine hotel. 

This won’t be a solution for all and some of our clients have been concerned to ensure that because someone can’t work from home shouldn’t lead to them being disadvantaged relative to their colleagues when it comes to holiday. This is because the other options would be for the employee to take additional annual leave to cover the period of quarantine, which in itself may take some employees over the maximum annual leave duration permitted under policy, or to take unpaid leave.  

Of course, the preference would be to have agreed with the employee before they go away how their time in quarantine will be treated. But that may not be possible in all cases such as when a country – like Mexico in the summer – is suddenly placed on the red list – where such restrictions may not have been anticipated before they left. HR may therefore find themselves trying to resolve the issue while an employee is still abroad and naturally anxious about the whole issue of getting back to the UK.

As with anything, what employees really need is transparency about their employer’s policy. If there is that clarity, then employees can make informed decisions and it mitigates the risk of grievances and claims following the return from holiday. 

We would also suggest that employers shouldn’t be too draconian in their approach – HR will no doubt be recognising that many employees just need to take a break, so try to be reasonable for the sake of employee relations and welfare.

Kirsty Thompson is an employment law partner at Devonshires

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