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13/07/20 Employment Law Update

EML

13/07/20 Employment Law Update

Annual leave, COVID-19 and quarantine – What employers need to know

 

With flights to popular tourist destinations being reinstated and the chance of a summer get away becoming a possibility, there are implications for the employment relationship which must be acknowledged when you factor in the 14-day period of post-travel self-isolation required when re-entering England. Unless one of the exemptions applies, including the newly created “travel corridors”, employers must be prepared for staff being unable to return to the workplace for the duration of the quarantine period following their time abroad. Understandably, this could prove incredibly difficult for employers who often find that they are stretched over the school holiday period without the added complication of quarantine. So where does that leave you, the employer?

Can I require them to work during their 14-day self-isolation?

If your worker is able to work from home then yes, however as the quarantine period is a legal requirement, you should not require them to attend their place of work as to do so would amount to encouraging them to commit a criminal offence (punishable by a significant fine).

Am I obliged to grant additional holiday to cover the quarantine period?

No, unless something in the contract of employment requires you to do so, which is very unlikely if it has been professionally drafted. You can, of course, exercise your discretion to allow for this even where workers are typically only allowed to take a maximum of 2 weeks given the exceptional circumstances, but the individual may not have sufficient leave available to cover it. In the alternative, you could agree a period of unpaid leave to cover the quarantine period and / or that which cannot be accommodated within the remaining annual leave entitlement. In terms of SSP, the Government is yet to confirm whether this will be applicable to the quarantine period. However, this has been categorised as a and other instances of required self-isolation have been covered by SSP from day 1 and as such it is a possibility that it will be extended to cover quarantine. That said, without such special provision from the Government, it is unlikely that SSP rules as they normally stand would apply.

Can I compel them to take annual leave for the quarantine period?

Subject to the terms of the employment contract, it is usually possible for an employer to compel a worker to take annual leave by giving notice at least twice the length of the period of leave to be taken, so in these circumstances a notice period of 28 days would apply. Where the worker has insufficient annual leave remaining (and the employer cannot cancel pre-authorised annual to increase the remaining leave entitlement) then consideration would need to be given to the alternatives set out above.

Can I tell workers that they cannot travel overseas during their annual leave to countries where travel corridors do not exist?

This is likely to considered unreasonable and could result in detriment claims relating to asserting the statutory rights provided for under the Working Time Regulations (WTR), or even constructive dismissal claims. Similarly, disciplining an employee for going overseas during their annual leave could also be risky, particularly where that leave has been pre-authorised and the overseas travel pre-booked prior to the announcement regarding quarantine, or even prior to the Coronavirus outbreak.

So what can I do as an employer?

In most contracts of employment, it will set out explicitly that annual leave is granted in line with the needs of the business, so new requests can be refused on that basis. Employers could consider issuing a memo to their workforce stating that where annual leave is requested for the remainder of the year, or for as long as quarantine remains a requirement, they will be required to declare their intention to travel abroad and confirm whether their intended destination falls within the current exemptions. and the employer can then make an assessment as to whether a prolonged period of leave would be feasible for the business. Where it is not deemed feasible, the request could be declined, but must be soin a timely fashion. Most annual leave policies will include a provision advising workers not to book holidays until their leave is authorised, so the individual should not be financially impacted if the request is declined and where they are, it will be the result of their own failure to abide by the annual leave policy.

Where leave has been pre-authorised, employers could consider advising the workforce that before booking any overseas travel, if they have not done so already, individuals should speak with their Line Managers / HR Department etc to ascertain whether the additional time off can be accommodated. Employers may also wish to allow the individuals to cancel pre-authorised leave if that additional time off cannot be accommodated so that the entitlement can be used at a later date.

Whilst in these circumstances, the employer still does not have the right to tell a worker how to spend their annual leave, if the worker has failed to give the proper notification and / or declare their travel intentions then disciplinary action may be possible if you can evidence that this was a requirement under the holiday request procedure..

A trickier situation is where the leave is pre-authorised and the travel was booked prior to the announcement of the quarantine requirements and prior to any company memo / policy change on the issue of taking annual leave whilst these measures remain in place. Employers will need to review the contract of employment for any provision for the cancellation of annual leave after authorisation (but beware, such provisions are not commonplace). Where the express provision does exit then there is limited scope under the WTR to cancel leave where there is a strong business case to do so. Again, this would require the correct notice to be provided and should only be done if it is reasonable to do so (which could be difficult to establish). Where pre-authorised leave is cancelled by the employer reliant on the WTR provisions then the employer will need to consider refunding any travel costs which cannot be recovered under any existing travel insurance policy and even then, such a step is likely to be risky and could result in the aforementioned claims. Moreover, where the leave is pre-authorised and travel already booked (in particular if there is no option to rearrange), disciplinary action upon the employee’s return will also carry significant risk for the employer.

In conclusion, the taking of annual leave for travel abroad whilst these measures persist is likely to cause headaches for employers across the country. Each case will need to be looked at on an individual basis and employers will need to look closely at the reasons for travel, the options available to the worker and their own ability to cope without the individual for the additional period of leave. There is certainly risk of claims of discrimination, particularly indirect discrimination where a blanket rule regarding annual leave is applied to all. As such, you should seek professional advice from one of our experts and call Employee Management Limited on 01942 727200.