Written by Jones Chase and Apodi HR Development
Introduction
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As an outsourced HR service provider and employment lawyers we, like many of you, are having to navigate through unprecedented times. We are currently being inundated with questions from our clients about the topic of holidays and foreign travel. There is so much information out there in a variety of places, so it’s understandably confusing. It is also changing daily which makes interpreting and applying it equally challenging. This update is stating the situation as at June 11, 2020.
We have shared below some of the more common questions we have received on this topic and combined our advice to provide a practical approach to navigating this topic yourself within your own business.
The impact is on going out of the country and coming in to the country. There is also the purpose for the travel; work business; pleasure holiday; family essential/ family non-essential are a few examples.
Coming in to the UK for work/business is covered in the government link: Click here
Going out (except to Ireland, Isle of Man and the Channel Islands) for whatever reason is currently not advised and British nationals are warned against all but essential “international travel”.
This position is being kept under constant review and as we approach summer months and heading into autumn and winter, and with the ‘r’ rate dropping we may begin to see a change to the country’s attitude to travel.
Therefore, as restrictions are gradually lifted workers may want to make decisions on their overseas holiday; whether it is one already booked before lock down commenced and not yet cancelled by the airline and/or the holiday company, or one they want to book in expectation of restrictions being lifted or a last minute booking holiday abroad.
Top ten tips
How can you react to holiday requests and what should you do now to anticipate such requests to protect your business?
- Understand the current rules as at the date of request.
- Make sure your holiday policy refers to company approval to be sought before booking the holiday.
- On each request for holiday ask if it is outside the common travel area (relevant as at that date) currently that area is Ireland, Isle of Man and Channel Islands.
- If it is outside the relevant common travel area, how long is the holiday for and what are the quarantine rules on return into the UK from that destination.
- Talk to the employee to discuss “what ifs” e g they become sick or a member of their family does whilst abroad/on getting home/shortly after getting home.
- Your holiday and sickness policy must reflect what your position is.
- Be clear on pay period and amount for each occasion.
- Make sure there is a record of the conversation with the worker and they have understood the grounds for approval.
- Treat everyone the same.
- Make sure your line managers are fully briefed and in the know.
Currently the position is
14 day quarantine
From Monday 8 th June a 14 day quarantine period was introduced for anyone who returns in to the country from foreign travel.
Similar quarantine rules are also in place in some other countries insisting on a 14 day quarantine for international arrivals. Therefore, before a worker travels check the foreign office for latest advice on the country they are travelling to, and also ask them to speak with their travel company and insurance provider.
On return from international travel a worker will be subject to the UK 14 day quarantine period. If a person returns and has to quarantine and they are able to do their work from home, then they will be able to work at home during this period.
If they are unable to work from home, then due to the 14 day quarantine period they will be unable to work and therefore the 14 days must be treated as unpaid leave. You should discuss this before they travel and remember to amend payroll accordingly. Your policies and contractual holiday clauses must reflect this.
Overseas holiday bookings canceled
If you find that workers who have pre booked holidays overseas find they are cancelled, you can still encourage them to take the leave anyway to provide adequate breaks and to support their wellbeing.
Alternatively, they could reschedule the leave to another time. Workers may feel they would prefer to postpone leave until much later in the year, but you should be careful to avoid the build up of untaken annual leave. It may not be practical for you to grant all requests later in the year in one concentrated period if you receive several requests at the same time and this potentially leaves you with inadequate staff cover. You will need to exercise as much flexibility as possible alongside balancing the needs of the business.
Asking workers to use up their leave by a certain date
As a way of avoiding significant holiday accruing, a proactive approach can be taken by asking workers to use up a percentage of leave by a certain date. For example some are introducing policies of asking workers to use 50% by the end of August 2020 to protect their well being.
You can also ask workers to take leave as long as you adhere to the working time notice rules in which the notice required is a minimum of twice as many days as the number of days’ holiday that the employer wishes the worker to take, e.g. 5 days holiday requires 10 days advanced written notice.
Self Isolation on holiday abroad
If a person does travel to an overseas destination but whilst there is told to self-isolate because a member of their family becomes ill with Covid-19 and as a result they are unable to fly back, you should ask them to obtain a medical certificate for that family member in the country they are visiting. On receipt of this you will be able to pay them Statutory Sick Pay in accordance with the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 from day 1 of self isolation (if you have less then 250 employees, you the employer will be able to reclaim the cost of 2 weeks SSP for this employee from the government).
We would not recommend that this self-isolation period is classified as paid annual leave unless you have gained agreement on this up front with your employees. The reason for this is that to “self-isolate” is not holiday (nor can it be forced to be holiday unless you use the working time notice rules in which the notice required is a minimum of twice as many days as the number of days’ holiday that the employer wishes the employee to take). The employee must not feel forced to use their holiday for this period of self- isolation and by forcing it may give rise to a grievance later on.
If your workers have been working from home and work ordinarily has been done from home, then you may like to consider asking any employee who chooses to travel to take their laptop and charger with them so that in the event they have to self-isolate they will be able to work or do some work. However, they must be able to get a reliable wi-fi connection and they must be able to ensure the security and safety of company equipment and data at all times.
Self Isolation on holiday in the UK
By now most employers are clear on what people need to do when self isolating in the UK: Click here
The NHS has an online service where your workers can obtain an Isolation Note if they have been told to self-isolate because of coronavirus and you need them to provide you with a note to support their absence and claim back the SSP. Click here
The NHS test and trace service will identify people who have had close recent contact with someone who has tested positive for coronavirus and will advise those individuals to self-isolate through the system and provide formal notification of this which can be shared with you the employer.
The new Test and Trace System will require employers to encourage workers to heed any notifications to self-isolate and support them when in isolation. Click here
Covid 19 illness on holiday abroad
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If whilst on an overseas holiday a worker becomes ill with Covid-19 and is unable to return then they will need to provide evidence of this through a medical note from the country they are visiting, on receipt of this they will receive Sick Pay. This will be Statutory Sick Pay unless you have an Occupational Sick Pay Scheme/Company sick pay, then those terms would apply and this will determine what is paid.
The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 provides that SSP will be available from the first day of absence for those sick with Covid-19 (normally it would be paid from day 4, so if the worker was ill for other reasons, that is the trigger pay date, day 4).
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The Government has stated that it will support small and medium-sized businesses and employers to cope with the extra costs of paying COVID-19 related SSP by refunding eligible SSP costs. Under this scheme:
- The refund is limited to two weeks per employee.
- Only employers with less than 250 employees (based on the number employed on 28 February 2020.
- Employers need to maintain records of employee absences relating to COVID 19.
- It is only one period of 14 days.
Check your company sick pay schemes to see if they provide sick pay at a rate you can afford, if not consider a variation of terms.
Medical evidence
Medical evidence is not normally required for the first 7 days of sickness during which an employee can self certify in England and Wales. After 7 days, employers normally ask for medical evidence if an employee is unable to work due to sickness.
It is advised that you record sickness relating to Covid-19 separately so that you have clear records for the purposes of reclaiming SSP (if you have less then 250 employees).
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If however, the sickness occurs whilst abroad on holiday, medical evidence can be requested from day one to convert holiday leave to sick leave. Make sure your policies reflect this.
Stuck in an overseas location
If whilst on holiday a worker is stuck in the country they are visiting due to flight difficulties or new restrictions enforced by the country they have travelled to, or new restrictions here due to, for example a further outbreak and this results in the worker being unable to return to work, this time can be treated as unpaid leave or if the employee chooses it can be taken as paid annual leave so long as the employee has the necessary remaining holiday balance and they request this and it reflects your policies and contractual rights as the employer.
Holiday Carry Over
The government has made changes to the Working Time Regulations which applies to employees, workers, agency workers and those on zero hours contracts and those who work irregular hours. Click here
In summary the new regulations allow up to 4 weeks leave (i.e. statutory leave) to be carried over from 2020 into the next 2 years. It provides flexibility to allow workers to carry over leave. It applies to all workers and their holiday rights.
Employers should actively encourage the booking of holiday. There may be exceptions however where a worker is prevented from taking leave due to business needs in which case a holiday request can be refused and the worker can rely upon the new carry over terms in the regulations.
Note that in the event of a termination any unused holiday, including any carry over holiday, needs to be paid on termination and this will be the case for any carry over across the next 2 years.
Summary
We would strongly advise that you take the time now to review all of your company policies and contractual clauses for holiday, sick leave, sick pay and unpaid leave in light of the changes in employment law since March 2020.
We hope that you found this update useful and you are now better armed to deal with questions about holidays and better support your business through the coming months.