Legal

How to manage holiday requests from staff

10 Sep 2021 By Emma O’Connor

Covid has transformed annual leave into a minefield of issues and employers need to be mindful that any decisions they make on this is not discriminatory, says Emma O’Connor

Untaken leave

Given the numerous lockdowns, many employees have banked a lot of holiday. Basic entitlement (four weeks) can be carried forward for two holiday years if it was not reasonably practicable to take holiday because of restrictions. This carry over was automatic and is in addition to any employer carry-over entitlement. 

For some, this is a lot of holiday to be taken. And employers must also remember that holiday rights apply to the wider class of worker as well as employees. 

Review what holiday your workforce has and what has been carried forward and encourage employees to take time off even if they cannot go away. Start discussing how requests are going to be managed internally and explain to staff the expectations. Make sure managers are talking about holidays during their meetings and planning now for when employees might be away.

Quarantine and pay

The government’s colour coded system for holiday destinations outlines the self-isolation and quarantine requirements for different countries.

Where employees are able to work remotely there is likely to be minimal effect if they are required to self-isolate or quarantine in the UK at the end of their holiday and if they are able to work normally (albeit from home), they should be paid as normal. 

Where employees can’t work remotely however, questions arise on how employers should deal with their absence from work. Options include requiring the employee to take unpaid leave, or perhaps statutory sick pay if an employee is self-isolating because a member of their household has tested positive for Covid-19. Annual leave might also be requested but employers may refuse a request for business reasons; employers should, however, be mindful of not acting in a discriminatory or unfair manner in doing so.

Is it a disciplinary offence if an employee knowingly goes to an amber/red country?

Technically, if an employee knowingly goes to a red, amber or amber plus list country (or perhaps even a country on the green watch list that is placed on the amber list while they are abroad) and is unavailable to work on their return to the UK, then yes this is a possibility. 

However, many have travelled in good faith to a green list country and been caught out by changing rules. While it is possible, it would be worth taking advice to avoid legal consequences. 

In practice, many employers allowed unpaid leave or extended holiday rather than going down a confrontational route. This is perhaps sensible in the circumstances.

Can we ask where an employee is going on holiday?

For the most part, employees are not required to disclose their holiday destination to their employer. However, given the unique times we are in it may not be unreasonable for employers to ask the question. 

Employers may also want to have discussions with the employee in advance of their holiday about what might happen if they need to self-isolate or quarantine on their return and if they are unable to work remotely – particularly in relation to pay. 

Specifically, employers may wish to discuss the practicalities of any required extended period of leave, such as booking an additional 10 days to cover the self-isolation or quarantine period or if the employee is going to use the ‘test to release’ scheme, which may be particularly relevant if the destination is already an amber or red list country. 

Can we refuse a holiday request?

If an employee has failed to give you adequate notice of their leave request, an employer may say no. Of course, employers should consider the reason for the request and why it has been made at short notice so using one’s common sense would be advisable.

Employers can also refuse a request because of business operational needs; for example, during busy periods where they are unable to get cover for such a long period of time, they are able to refuse an annual leave request. 

Importantly, employers should ensure that any decision made in relation to granting or refusing leave requests should be done in a uniform and consistent manner according to their holiday rules, to avoid any discriminatory issues. 

While employers may be tempted to put policies in place that restrict where an employee can travel to on holiday, particularly where the employee cannot work remotely, these are not recommended. Such policies will likely lead to friction within the work places between workers who can work remotely and those that cannot and would likely be discriminatory, for example, on grounds of race or religion. 

Emma O’Connor is director and head of HR Training at law firm Boyes Turner

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