Managing Holidays During Coronavirus Restrictions

With half term approaching, my blog this week answers four important questions regarding managing employee holidays, including any subsequent self-isolation, during the various restrictions that have been imposed due to coronavirus. 

Where do companies stand legally regarding pay and time off for employees who are required to self-isolate after returning from a holiday abroad?

I am reminded of a recent report about a couple who went on holiday to Turkey in September when no quarantine was required on their return to the UK from that country. Expecting a quiet, relaxed, romantic week away they were surprised, and no doubt delighted, to find their hotel was largely full of UK families even though it was during the school term. It transpires that numerous schools had sent pupils home following other pupils becoming infected and the parents had taken the opportunity to whisk their family away for a cheap holiday in the sun. I will leave you to judge whether that is in the spirit of what we are all being asked to do at present!

Whereas this example raises lots of moral questions, in this blog I will play it safe and stick to employment law related issues.

Let’s change the narrative to one that is less controversial, an employee who booked a holiday in good faith when no restrictions were in place but then finds they need to self-isolate on their return to the UK. 

Although the employee may feel hard done by, the normal rules apply in that the contract of employment does not allow for such time off to self-isolate so although it would be reasonable to allow the absence, there is generally no requirement to pay the employee as they cannot fulfil their contract. This applies even where the employee is legally required to self-isolate i.e. it is not their choice. Clearly, however, employers would normally explore other options such as working from home for the isolation period.

Unfortunately, as is often the case with employment law it is not quite as straightforward as a cast iron ‘no pay’ answer. Individuals may cite a recent Court of Appeal ruling that if an employee is able and willing to attend work but a third party reason means they cannot do so then they should be paid as it is not the employee’s fault they cannot attend. The case in question was not coronavirus related but is clearly relevant. 

We advise that you be reasonable and open minded but the bottom line according to legal advice I have received is that, despite this ruling, the time off does not need to be paid. This is especially the case if the holiday was booked after the quarantine rules came in. So if the holiday was booked in June 2020 or after it could reasonably be argued that even if the holiday destination was not on the quarantine list at the time of booking, quarantine was foreseeable and clearly a possibility so the employee should have made arrangements to be able to fulfil their contract i.e. book further annual leave after the holiday or accept they may need to cancel it if they wish to avoid 2 weeks unpaid time off work on their return.

Clearly if the holiday was booked prior to the quarantine arrangements being widely known in June then the employee may have a better case although the legal view is that in general it should still be unpaid if there is no reasonable option of working from home. 

As always, if you’re unsure please take advice but as an action point we’d recommend clarifying your stance in a company-wide email.

Can employers require employees to take annual leave for a period of self-isolation following a trip abroad?

The short answer is yes, but it would need to be managed in a way you may not like! 

The legal advice on this one is to inform employees who request holidays for a trip abroad that they are required to book a further 2 weeks annual leave following their holiday for self-isolation purposes, which will be cancelled if isolation is not required. 

It is not sufficient to give a general message e.g. ‘if you need to self-isolate when you return from holiday then you may be required to take up to 2 weeks of your holiday entitlement for this purpose’ This is because, rather than a general announcement, legally you need to give specific notice of this requirement to each employee prior to their holiday. 

The employee must be given notice of the specific requirements with a timescale before the holiday of at least twice the length of their holiday i.e. they must be given at least 2 weeks’ notice of the requirement prior to a one week holiday, 4 weeks’ notice prior to a 2 week holiday etc.

In the real world most employers are unlikely to want to follow this advice as it is likely to create more problems than it solves, in which case please be aware that, although they may volunteer to do so to avoid not being paid, legally you will be unable to require the employee to take annual leave for this purpose after their holiday. 

The isolation period should normally be classed as authorised unpaid leave, assuming the individual cannot work from home.

This issue of self-isolation on return from holiday is likely to be a particular challenge for employers if, as seems likely, coronavirus is still a big issue at the end of the year. Christmas is a time when numerous non-UK national employees go to their home country for the holiday period. Clearly this will need careful planning and, if you haven’t already, we would advise you to start talking to your employees about self-isolation arrangements on their return very soon. 

For the smooth running of your business you may need to arrange temporary cover or ask some employees to cancel holidays abroad over Christmas due to the impact of so many people being absent from work due to self-isolation on their return. 

What happens where employees have not used all of their annual holiday allowance at the end of our holiday year due to coronavirus related issues e.g. furlough?

The first point is that it is perfectly acceptable to ask, or even require, employees who are furloughed to use holiday entitlement whilst they are off. Please remember, however, to give them the required notice as explained above, and to top up their salary to full pay for the time taken as holiday.

The main issue to be aware of regarding carrying forward holidays are the requirements of our old friend the Working Time Directive (WTD), that allows some holiday to be carried forward into the next holiday year but requires at least the statutory minimum 4 weeks holiday to be taken by every employee during the holiday year.

If it is not reasonably practicable for employees to carry forward holidays then employers do not need to agree to do so and in most cases do not need to pay employees in lieu for this lost holiday. 

However, it has been confirmed that employers can agree to requests to carry forward not only the entitlement above the statutory 4 weeks but also some of this 4 week period if they choose to do so, but employers are not required to agree to it. They may only agree to carry forward any of the statutory 4 week period if the reason that those holidays have not been taken is coronavirus related i.e. quarantine, lockdown or furlough.

If you have a situation in the coming months where a large number of employees who have not been able to take all of their annual leave due to quarantine, lockdown or furlough request to take a significant number of holidays before the end of the holiday year, the employer can refuse such requests if it can justify the decision on business grounds e.g. there is a need to make up a lot of work at present due to coronavirus interruptions to the business, or it would impact too greatly on customer service…….

It is also acceptable for employers to pay any outstanding holidays in lieu but only any days that are outstanding in excess of the statutory minimum 4 weeks that must be taken as holiday as per the WTD. Both parties would need to agree to the holiday being paid in lieu but if the alternative is the holiday not being carried forward and not being paid employees are unlikely to refuse.

Finally, if you do agree for employees to carry holiday forward then you may wish to specify a date by which such holidays must be taken e.g. 31 March 2021 so you don’t have an unmanageable build-up of unused holidays that employees wish to take next summer.

Can an employer require employees who are being made redundant to take their remaining holiday entitlement during their notice period or during Garden Leave?

Again the short answer is yes. Please remember the above 2 points though that you need to give notice of the requirement of at least double the number of days to be taken, and also if the individual is furloughed you need to top their salary up to full pay for the holiday period.

If you are currently considering making redundancies, 186hr have produced a ‘Practical Guide to Making Redundancies’ which includes guidance at each stage of the redundancy process, model Word based documents for you to copy, paste and adapt to your circumstances and also 2 hours of telephone based consultation with a highly qualified Senior HR Manager to answer queries and further tailor any documents to your needs. A free abridged version of the document can be viewed here.

If you or any business owners you know need any further information about the above issues or any other HR topics please contact us