10 Jun 2021

With Portugal now downgraded from green to amber on the UK Government’s travel list as of 4am on Tuesday morning, the prospect of sunning ourselves abroad in the Algarve or elsewhere this summer is looking even more like a pipedream. As Delta variant covid cases steadily increase (both in the UK and overseas), employees and HR professionals alike can be forgiven for feeling dismay at the continuously changing position. Staff are likely to have a backlog of untaken holiday leave and a desperate need for downtime as a result of the pandemic.

While at present employees are perhaps less likely to be visiting countries on the Government’s red list, holidays to countries on the current green and/or amber list may already have been booked.

Tui is reporting that 50% of passengers who have booked a holiday in Portugal this month are still planning to go, so employers may well find that employees are less willing to accept disruption to their summer 2021 travel plans than they were last year.  

In this article we cover:

  1. The traffic light system
  2. Can we ask employees to notify us of travel plans?
  3. What do we do about a employees returning from an amber or red holiday?
  4. Other holiday issues

1. The traffic light system

Let’s start with the traffic light system – what are the rules?

Our brief summary of the current traffic light rules is set out in the table below, but do ensure you stay up to date on the Government’s ongoing changes by checking here, and signing up for the email alert.  Note that the rules apply whether or not employees have been vaccinated. We also address some of the key issues to consider with amber list travellers below.

2. Can we ask employees to notify us of travel plans?

Our view is that you can ask employees to notify you of their foreign travel plans in advance of or on return from their holiday.  This allows employers to establish which traffic light applies to the employee’s destination country. This may be considered a reasonable employer request in light of the current circumstances in the UK.

This information is likely to be personal data for data protection purposes and therefore employers will need a lawful basis on which to obtain and store it.  Provided the employer’s approach is transparent and proportionate, it is likely to be hard for an employee to argue that there is no lawful basis for their employer to collate and process such information: it is justified for the purposes of complying with health and safety obligations towards staff and visitors.  On the other hand, it is much more difficult to ask employees to provide their post-travel PCR test results, given the requirement to quarantine or self-isolation at home, meaning there is little benefit to gathering test results data.

Additionally, there is a duty on employers to ensure that they do not knowingly allow employees to attend the office where they should be self-isolating in a “designated place” (i.e. their home), for the purposes of the Health Protection (Coronavirus, Restrictions) (Self-Isolation) England Regulations 2020.  A breach of this requirement could leave employers liable for a fine starting at £1,000 if a returning employee attends the workplace during the required isolation or quarantine period.

Attempting to minimise your knowledge by not asking the relevant question either before or after the employee’s return from holiday is unlikely to put you on the best footing, particularly if the employee might have mentioned it in casual conversation with colleagues. That said, most holiday provisions in employment contracts and policies only deal with notice requirements, duration, and pay.  As such, any updates to your holiday policy, such as requesting notification of a foreign destination or stating how enforced self-isolation will be dealt with (see below) should be fully explained to employees as early as possible.

3. What do we do about a employees returning from an amber or red holiday?

The first point to consider is the extent to which the employee can work as normal.

For the vast majority of office workers this may well be the case and it will be business as usual, reflecting their current working from home arrangements. However, bear in mind that this could be tricky where they are confined to a red list hotel room, as essential work equipment may not be to hand. You may decide to take no action where they proceed with their holiday plans in this scenario – for example, pay them as normal and no need to treat the period as additional holiday.

The position is less straightforward where an employee cannot easily work remotely from the office (for example if their role has particular risk and/or supervisory elements). The decision to proceed with an amber list holiday where the employee knows that the return will feature a 10-day self-isolation period will quite rightly be viewed less favourably by employers. Covid symptoms or other illness will mean that your sick pay regime kicks in during any such period (so statutory and potentially enhanced sick pay would be relevant). However, where that does not apply, employers will need to decide on their pay policy.

Despite the possibility of cutting short the self-isolation period using the “test and release” option on day five of their return from holiday, recently showcased by Michael Gove upon his return from Portugal, this still amounts to at least five days of unplanned absence. While some employers may take the generous view that these are exceptional circumstances and pay employees as normal, a more realistic approach may be to treat the period as unpaid leave or agree a reduction to the employee’s remaining annual holiday entitlement.

Aside from the inconvenience to the business from the employer’s perspective, it is not hard to envisage disgruntled employees arguing that they should not be penalised for the consequences of the pandemic or the Government’s last-minute changes to the traffic light list. Problems and grievances should always be addressed on an individual basis, but a widely communicated foreign travel policy which applies across the workforce is likely to be the best starting point.  This will set out clear expectations and ensure there are fewer surprises for those who wish to travel to an amber or red destination. 

4. Other holiday issues

The usual holiday issues will also need to be addressed by HR, such as whether it is possible to dictate when employees take holiday and how much they take, as well as managing numerous requests for the same holiday period. 

As usual, the answers will involve an array of employment considerations, including holiday clauses in contracts and handbooks, the Working Time Regulations 1998 (specifically Regulation 15 regarding holiday notice periods), treatment of previous holiday requests, the particular business needs and the demographic of your workforce (including any protected characteristics).  You can see our earlier discussion about what to do with unused annual leave here.

One thing is certain – it is essential to stay up to date on the travel and holiday rules, as they develop. If you face particular difficulties in relation to an employee’s holiday request, bespoke legal advice is usually advisable.

Contact us

If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak to your usual Fox Williams contact.  Please contact info@foxwilliams.com if you would like to sign up to our regular hrlaw newsletter.

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