Employees heading overseas: What employers need to know

Employment & Skills | Legal | Reports
Laura Kearsley

Brits hoping to go abroad this summer were given a glimmer of hope after the EU confirmed vaccinated travellers will be able to fly to Europe from June. However, the UK’s traffic light system, which is due to be announced, means both employers and employees need to be aware of the conditions under which they are travelling, and how it may affect a return to work – according to an expert employment law solicitor at Nelsons.

Under current international travel rules, only those who have a “reasonable excuse” are permitted to travel outside the UK. This essential travel includes those travelling for work, to get married or attend the wedding of a close relative, or to visit someone who is ill or requires medical care.

Laura Kearsley, partner and solicitor specialising in employment law at Nelsons, said: “Due to the continued impact of Covid-19, many employees are unsure as to where and when they should take their holidays during 2021.

“Under the latest version of the UK’s roadmap, it indicates that a return to non-essential travel overseas could be possible from 17 May, but this depends on infection rates in the UK and overseas, as well as respective vaccination programmes.”

Green, amber or red

“The government’s ‘global travel taskforce’ has created a traffic light system, which categorises countries based on a number of risk factors and places them in either green, amber or red:

  • Green: Requires one pre-departure test before returning to the UK, one PCR Covid test on arrival back in England or Wales and no quarantine period.
  • Amber: Requires one pre-departure test, ten days of quarantine at home upon arrival back in the UK and a PCR test on days two and eight of quarantine.
  • Red: Requires one pre-departure test, ten days of quarantine in a government-managed hotel upon arrival back in the UK at a cost of £1,750 per person, and a PCR test on days two and eight of quarantine. Passengers must also book and agree to pay for a quarantine package before leaving the UK.

“It’s important to bear in mind that quarantine conditions will be dependent upon the country visited and that each category is subject to change at any point.

“For example, someone could start their holiday visiting a green category country that is moved to amber during their stay, meaning quarantine would be required upon their return to the UK. Consequently, this makes the holiday booking process a bit more complicated for both employers and employees.”

When an employee makes a holiday request, am I able to ask where they’re going before I approve it?

“This is possible, but it’s likely you will need to update your internal policies before you do so. Any policy changes should be made known and explained to your employees, which includes:

  • Notifying you if they’ve travelled overseas;
  • What happens if they need to quarantine;
  • How any periods of absence due to quarantine will need to be recorded or noted in employment records;
  • If they will be paid for quarantine; and,
  • If they won’t receive pay during this time, whether they can use any remaining annual leave.”

If any of my employees need to quarantine, can I ask them to work?

“Employees who should be returning to work but are unable to due to quarantine must follow the employer’s absence reporting procedure. As an employer, you can’t ask employees to return to the workplace if they have to quarantine as this would be a direct breach of Covid-19 regulations.

“However, if your employee is able to work from home while in quarantine, or from their quarantine hotel, then you may consider allowing them to do so.”

If my employee has to quarantine, can’t work from home and has no annual leave left, do I have to pay them?

“No, you don’t have to pay a member of staff in this scenario, 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. If they have not agreed a period of unpaid leave in advance then you may regard this absence as unauthorised.”

My employee has booked annual leave this summer for an overseas trip, but I’m concerned about them travelling abroad. Can I cancel their holiday?

“This is a difficult situation. As an employer, you have the right to decline holiday requests at the time they’re made, but this is not an automatic right to cancel the holiday further down the line. Either the employee’s contract or your holiday policy will contain the information on cancelling requests, and this will need to be followed.

“If no such clause or policy exists, employees should abide by the Working Time Regulations. Regulation 15(2)(B) states that employers must give as much notice as the leave they want to cancel and explain why. For example, to cancel one week of annual leave, one week’s written notice must be given.

“Your employee would have a good argument that they had relied on the holiday approval and will lose money if the leave is cancelled. However, you should discuss this on a case-by-case basis as it may be that your employee’s plans are flexible.”

Now things are re-opening, can I decline all holiday requests for a specific period until we know how busy things are?

“Yes, employers can decline holiday requests if there are business reasons for this. However, I’d recommend making sure that your employees have the opportunity to take some holiday for health and well-being purposes.

“Something we have often heard during the pandemic is that many employees have not booked any holiday this year and are hoping to take time off when restrictions ease. This is something that should be discussed with employees as a break from work is vital, even if it’s not overseas. For this reason, you should consider to what extent you’re going to allow employees to put off taking holiday and whether this might be create problems further down the line.”

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