Employment Q&A: Should I stay or should I go?
By Aleksandra Traczyk, Solicitor, Winckworth Sherwood
The vaccination programme so far has been very successful in the UK and we are all now allowing ourselves to see the light at the end of the tunnel – daydreaming about holiday destinations. The Government has implemented a traffic light system of green, amber and red countries in relation to holidaying outside the UK this year and as of 17 May, it’s no longer illegal to go abroad – or rather you do not need an essential reason to do so. But the Government has also been quite firm in emphasising that holiday-makers should not to go to amber or red countries. As countries are gradually added to the green list, the question on everybody’s mind will be: should I stay or should I go?
From an employment legal perspective, just to briefly summarise your rights, you have an entitlement to holiday – this is a minimum of 28 days a year including any public holidays, which will be pro-rated if you work part-time. You are entitled to take this holiday every year and sometimes your employer will give you more holiday under your contract.
The default position in law is that you should give reasonable notice to take holiday which is normally twice the length of the holiday – i.e. 2 weeks if you are going away for a week.
Your employer is likely to have its own requirements in relation to you taking holiday either set out in your contract or holiday policy. They can refuse your holiday, for example, during a busy period or require you to take holiday during certain times. The employer should also give you the same length of notice to require you to take or to cancel your holiday.
Travel abroad for holiday
Q: Can my employer stop me from going abroad on holiday this year?
While your employer can normally dictate when you take your holiday, there is no provision in law which says that they can dictate where you can go on holiday. However, if your employer was worried about this and did not want staff to travel abroad on holiday, particularly if they need people on the ground, it is likely that they have implemented a specific policy which discourages staff from going on holiday abroad – for example, by making it clear that they will have to follow any quarantine advice and not be paid during this time.
Q: Do I have to tell my employer that I am planning on going abroad on holiday this year?
As these are unusual times, you should ensure that you tell your employer in advance if you are planning to holiday abroad this summer. If you have been allowed to work from home throughout the pandemic – and could continue to do so if you had to quarantine, this is unlikely to be an issue for your employer.
But if you cannot work remotely this may cause friction. You should ensure that you are clear on whether your employer may require you to use your holiday if you have to quarantine on return or whether you have to go on unpaid leave – and agree such arrangements in advance. You should note that your employer has no legal requirement to pay you during quarantine.
Q: Could I be dismissed if I have to quarantine?
I think that the risk is generally low but it will depend on the individual circumstances. Not turning up for work is a potentially fair reason to dismiss someone but your employer would still have to show the cause for your dismissal was within the “reasonable range of responses”.
Most employment judges would likely be sympathetic to anyone who was caught out by quarantine requirements having gone to a ‘green’ country. But a different scenario may apply to someone who went to a ‘red’ or ‘amber’ country knowing they would have to quarantine on return and did not tell their employer beforehand, knowing for example that they were on the rota to work immediately upon their return and there was no other cover.
Nevertheless, your holiday allowance is your own time and your employer will struggle to demonstrate any right to interfere in what you do with it. But as there is a duty of trust and confidence at the heart of every employment relationship, it is always best to agree the arrangements with your employer beforehand.
Q: I have heard that I can carry over my holiday for 2 years because of the pandemic – is this true?
It is true that the Government has introduced regulations which allow workers to carry over their holiday for up to 2 years because of the pandemic.
However, this only relates to the statutory minimum holiday to which you are entitled, not any contractual holiday. Also, as these regulations were mainly introduced for staff who work in sectors overwhelmed during the pandemic – such as the NHS – there is a fairly stringent test to meet namely whether it was ‘not reasonably practicable’ for you to take your statutory entitlement in the leave year concerned.
In most cases it will be reasonably practicable for you to take holiday even if you have to stay at home. The Government guidance sets out various factors which employers should consider when applying the not reasonably practicable test, but these are largely limited to where you have been self-isolating or too sick to take the holiday before the end of your leave year, where you’ve had to continue working and could not take holiday or where you’ve been furloughed and couldn’t take the holiday.
Travel abroad for work
Q: What if my job starts asking me to travel again with business? Is that allowed?
That is a good question as some roles do inherently involve travel and with the re-opening of certain travel routes, some employers and employees – if not everyone – will no doubt be keen to get moving again.
Travel is now possible between Scotland, England, Wales and Northern Ireland, although Northern Ireland recommends that you take a test before travel. Nevertheless, this is likely to be a lot easier than international business travel.
International business travel is subject to the same regime of red, amber and green lists as travel generally, but with added considerations. Whatever your trip is intended to achieve, your employer will have to consider whether you can safely carry out your aims; for example, while certain meetings are permitted in the UK, would they be elsewhere? Likewise, if you have to quarantine or pay for tests because of local restrictions at your destination, that has to be factored in and it could significantly lengthen your travel arrangements.
Certain very specific professions have modified or relaxed requirements when travelling back into the UK, mostly to reflect the essential nature of their work (for example, key personnel involved with clinical trials). These professions are quite limited and vary across the UK countries; most people will need to comply with the default rules around green, amber and red list countries, even if travelling for work. That may entail quarantine and, if you are required to do so and unable to work because of a business trip, it would be reasonable to expect that you still be paid.
Q: What if I do not want to go on the trip?
Your employer has the right to issue you with reasonable instructions. However, government guidance does still stress that employers should encourage working from home wherever possible and, for many of us, the last 18 months have shown just how capably we can work remotely.
What is reasonable in the circumstances is likely to depend on the destination, what you are being asked to do there – and how COVID-safe it is – and the basis of your objection. Asking someone to travel to a red list country is unlikely to be reasonable unless there is a very compelling reason, particularly given the potential difficulties of obtaining insurance.
If your employer really is being unreasonable and intends to sanction you for not taking a journey, they could be in serious breach of your employment contract, allowing you to resign and claim unfair dismissal.
However, that is really the last resort and your first stop should be a dialogue with whoever is insisting you travel or, if need be, someone more senior. Seek guidance from trusted people internally and check the latest policy and guidance from both your employer and the Government.