Legal

How to handle workers holidaying in amber zones

7 Jun 2021 By Michelle Last

Michelle Last explores whether businesses can ban employees visiting amber and red list countries, especially when the guidance is ever changing

With a meagre list of classic holiday destinations headlining the uber-awaited green list, some employees may be tempted to plunge for a riskier amber list country. And for those who may be getting excited about the prospect of finally divesting themselves of those long-held refunded flight vouchers near to expiring, they should press pause and ensure their employer does not put the kibosh on the whole thing – or they may be facing another two hours on hold trying to get a refund on their flights. Or worse.   

The government looks set to change its guidance on working from home on 21 June 2021 (although the Indian variant may yet scupper this plan). If it does, employers may be able to require employees to return to the workplace. Some may want staff to return to the office full time. Others may want them to return part time. Either way, if that occurs, it will make it more difficult for employees to book a holiday if the Covid rules mean they have to quarantine on return to the UK. 

Employees thinking of going on holiday to an amber list country and simply working from home on return may therefore need permission. Many businesses limit the amount of holiday that can be taken at any one time. Typically, this is capped at two weeks. Cautious employers may want to stop holiday plans that involve employees being out of the office for the duration of their holiday plus up to 10 days of quarantine on return. They potentially can do so by simply requiring employees to return to work and not allowing extended leave. 

Additionally, many organisations simply will not want to run the risk of employees bringing home new strains of Covid and infecting the workforce, or even just getting ill themselves. It is certainly possible (and likely) that some employers will attempt to ban staff from travelling to amber or red list countries. If businesses can legitimately require employees to wear a face mask or be vaccinated in certain circumstances, as recent employment tribunal decisions have shown, it is not beyond the realms of possibility that they may be able to veto certain holiday destinations too. 

Our civil liberties are simply not what they were pre-Covid. Having faced such a difficult period over 2020-21, many employers are keen to start reopening the workplace and reuniting teams. Foreign travel may risk that. Particularly in government-deemed higher-risk destinations. 

Although the vaccine rollout has progressed swiftly, it will not stop all infection transmission and may not be as effective with variants. The government has stated that we should be avoiding amber list countries and should exercise caution. Spurred with this guidance, employers may well wish to announce to employees that they should not travel to amber list countries for holidays and that they must seek permission from management to do so. If businesses are minded to adopt this approach, they should communicate it to staff sooner rather than later.

Employees who fail to comply with a reasonable management instruction may be subjected to disciplinary action. It could also potentially be a breach of the relationship of trust and confidence between the parties. The threat of this may be sufficient to stop employees booking holidays in amber list countries, where the employer is set against this. 

With the guidance from the government ever changing, employers should exercise caution – today’s red list may be tomorrow’s go-to green destination. 

Michelle Last is a partner at Keystone Law

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