Employee Holidays In 2021 – FAQs By Employers

Due to the continued impact of Covid-19, many employees may be unsure as to where and when they take their holidays during 2021, e.g. an overseas vacation in the summer/autumn or a staycation in the forthcoming months without the risk of having to quarantine at home or in a hotel.

Laura Kearsley from our Employment Law team answers some frequently asked questions by employers in relation to employees taking holidays in 2021.

What are the current Covid-19 restrictions in respect of international travel?

Under the current rules, foreign holidays are allowed again. Overseas holiday locations are now categorised using the Government’s traffic light system which reflects each country’s respective Covid-19 risk, with different rules and restrictions for each.

The traffic light system categorises countries based on the following risk factors:

• The percentage of their population vaccinated;
• The rate of infection;
• The prevalence of Covid-19 variants of concern; and
• The country’s access to reliable scientific data and genomic sequencing.

The quarantine conditions of the traffic light system are dependent upon the country visited. The conditions of the system are:

• For someone visiting a country in category ‘Green’:
  • One pre-departure test up to 72 hours prior to returning to the UK (type unspecified).
  • One PCR test on or before day two of arrival back in England or Wales.
  • No quarantine period unless the person tests positive for Covid-19.
• For someone visiting a country in category ‘Amber’:
  • One pre-departure test.
  • Quarantine at home for 10 days on arrival back in England or Wales.
  • PCR test required on days two and eight of quarantine (reduced to day five by paying for the cost of an extra test – Test to Release – on that day).
• For someone visiting a country in category ‘Red’:
  • One pre-departure test.
  • Upon arrival, passengers must quarantine in a hotel for 10 days at a cost of £1,750 per person.
  • PCR test required on days two and eight of quarantine (included in the quarantine hotel package).
  • Passengers must book and agree to pay for a quarantine package prior to leaving the UK.

In respect of which countries are listed in each of the above categories, this can be found here.

It is important to note that the category that each overseas country is placed in is subject to change, based upon updates in the above risk factors. However, to limit the risk of disruption, which was caused last summer, the Government will move countries between the three categories every three weeks, instead of weekly. This could still mean that someone on an overseas holiday could find out partway through their break that they will have to quarantine when they arrive back in the UK (e.g. their holiday destination has moved from category green to category amber, or from category amber to category red) or they will have return to the UK earlier to avoid having to quarantine.

All travel and quarantine restrictions will be reviewed by the Government on 28^th June 2021, where they will consider whether the restrictions can be altered/relaxed further. Additional formal reviews will take place no later than 31^st July 2021 and 1^st October 2021.

When an employee makes a holiday request, am I able to ask them where they are going before I approve the request?

This is possible but employers will most likely need to update their internal policies before they do so. Typically, when it comes to making a holiday request, employees are only required to give minimum periods of notice to take leave and are restricted in the number of days/weeks they can take at one particular time.

Any policy changes should be made known to employees, which includes:

• The employee notifying their employer if they have travelled overseas.
• What happens if they travel abroad and need to quarantine upon their return to the UK.
• How any periods of absence, as a result of having to quarantine, will need to be recorded or how it will be noted in their employment records.
• If they will be paid during any periods of quarantine.
• If they won’t receive pay during this time, whether they can use their remaining annual leave days.

Employers will also need to inform their employees why these changes have been made to the policy and direct them to where they can view it.

If any of our employees need to quarantine after an overseas holiday, can we ask them to work?

Individuals who are required to quarantine must do so. Employees who should be returning to work following a holiday but are unable to do so, as they have to quarantine, must follow their employer’s absence reporting procedure.

Employers are unable to ask their employees to return to the workplace if they are required to quarantine as this will be a direct breach of the Covid-19 rules. Additionally, if the employee shows up to work when they should self-isolating/in quarantine then their employer must send them home immediately.

However, if the employee is able to work from home whilst in quarantine or from their quarantine hotel then they are able to do this as long as the employer agrees.

If an employee has to quarantine, cannot work from home and has no remaining paid leave days to use, do we have to pay them?

An employer doesn’t have to pay an employee if they are unable to work and have no remaining paid leave days to use up unless the individual is ill.

Individuals who are required to quarantine but have no Covid-19 symptoms are not entitled to receive Statutory Sick Pay (SSP) either. As a result, many employees will have to take unpaid leave.

Now that some international travel is allowed, many of our employees want to take holidays at the same time. Is there anything I do to prevent this from happening?

Firstly, employers should discuss this with the employees concerned and encourage them to take some holiday, even if it is not to travel overseas, for their own health and well-being, so they get a break from work.

In an attempt to pre-empt potential problems with employees wanting the same days or weeks off, it is vital that all employers have in place rules on requesting holidays that are set out clearly and are readily available to employees. These rules, typically listed in a holiday policy, should specify the process for making a request and notice requirements. The rules should also state that leave requests will be refused if:

• They cannot be accommodated for operational reasons or purposes; and/or
• If the worker has not made the request within a sufficient amount of time before the requested leave period.

Employers have a right, under the Working Time Regulations, to give employees’ notice to take their holidays, just as employees have to give notice to book holiday.

This applies to those that are working and those that are furloughed (the furlough leave scheme will remain in place until September 2021). Those that are furloughed are likely to be entitled to 100% of their pay for holiday taken while on furlough.

If no such rules exist in respect of making leave requests, then employees should give notice which equates to at least twice as many days as the number of days leave they wish to take. Conversely, employers can give counter-notice to the employee which requires that the leave not be taken, as long as the counter-notice is equal to the length of the leave period requested.

An employee has booked annual leave for the summer and is going on an overseas holiday but we are concerned about them travelling abroad. Are we able to cancel their holiday?

This is tricky. Employers have a right to decline holiday requests at the time that they are made but this is not an absolute right to cancel someone’s holiday further down the line. Either the employees’ contract of employment or the employer’s holiday policy will contain information on how to cancel holiday requests, and this will need to be followed.

If no such clause exists in the employment contract or there is no internal holiday policy, then employees should abide by the mechanism in the Working Time Regulations, which states, under Regulation 15(2)(b), that employers give as much notice as the leave that they want to cancel, e.g. to cancel one week of annual leave, the employer gives one weeks’ written notice. Employers are required to inform their employees why their holiday has been cancelled and when/how it can be rebooked.

The employee would have a good argument that they were entitled to rely on the holiday approval and they may lose money (e.g. a deposit) if their leave is cancelled. Employers could discuss it with the employee though as it may be that their plans are flexible.

An employee has asked to cancel annual leave that they have already booked but I’m concerned that they have lots of annual leave days to use up and may want to use it when it is not convenient for my business. Do I have to cancel the annual leave?

Unless the holiday policy or the employee’s contract of employment states otherwise, an employer does not have to agree to an employee’s request to cancel a holiday that has already been booked.

When considering whether to cancel a leave request, employers must take into consideration the operational needs of their business, along with the employee’s own circumstances. Whilst employers should try to be as flexible as possible when it comes to employees taking or cancelling annual leave, they must place also give much significance to the needs of the business, e.g. in some cases, it may be beneficial to the business that one of their employees takes annual leave, which the employee wants to cancel, if, for example, they are short on work for the employee to carry out.

My employees are not using their annual leave days and they are running out of time to take them. Can I make my employees take annual leave?

Employers should encourage their employees to use their annual leave but if this does not work, then they can put in place a stricter approach that requires employees to take a percentage of their annual leave days by a specified date or book an amount of annual leave during a certain period when, for example, their business is less busy, such as the summer months.

Further, as long as they give notice, employers can compel employees to take annual leave on specified days, although this is not likely to be popular.

The summer holidays are posing issues for my employees in respect of looking after their children and working. How can I best support them, whilst ensuring that it doesn’t impact my business?

Where possible, employers should try to be as flexible as possible during the summer holidays by allowing them to work from home (if they aren’t already doing so) and/or by being flexible with working hours.

Many businesses may well have already introduced hybrid working models prior to the summer holidays, so this should make things easier for employees.

In certain cases, employees may request to be furloughed during all or part of the summer holidays, which is allowed under the rules of the CJRS, but whether this is allowed or not is at the discretion of the employer and their business needs.

I have had to make some employees redundant, can I make them use up their holiday during their notice period to save having to pay this in addition?

Yes, this is allowed as long as the employers give the required notice.

Now we have or are about to re-open, can I decline all holiday requests for a period whilst we see how busy things are?

Yes, employers can decline holiday requests if there are business reasons for this. However, employers still need to make sure that their employees have some opportunity to take some holiday for health and well-being at some point and should consider to what extent they are going to allow employees to carry holiday over to the next leave year as this might just be putting off problems.