COVID-19: FREQUENTLY ASKED QUESTIONS IN RELATION TO HOLIDAYS (15 JULY 2021)

1. Can employers dictate when employees take their holidays?

The short answer is yes. Regulation 15 of the Working Time Regulations permits employers to give written notice to employees as to when they are required to take their holidays. The notice must be given not less than twice as many days in advance as the number of days required to be taken.

In the first instance employees should be encouraged to take their holidays during the holiday year so as to avoid carrying them forward. They could be reminded that if they do not make arrangements to do so the employer might be forced to invoke Regulation 15. Bear in mind however that where holidays are not taken either voluntarily or under compulsion, under emergency legislation, workers are entitled to carry forward some or all of their four weeks’ holiday entitlement into the following two years where it has not been reasonably practicable for them to take the time off due to the effects of Coronavirus.

2. What if all my workers want to go on holiday at the same time?

Employers are free to decide which applications for holidays they agree to and which they reject, provided the decision making process is not tainted by discrimination based on a protected characteristic.

It is open to employers to try to impose some degree of priority when considering applications for holidays but such action is fraught with difficulties.

Our recommendation is that decisions on applications for holidays are taken solely on the basis of the interests of the business. Regulation 15 can be used if required.

3. Can I consent to holiday applications dependant on whether the employee is going to a green or amber destination?

The answer is yes. Government guidance discourages travel to amber destinations. Circumstances and local restrictions can change very quickly. Whilst the quarantine rules in relation to returning passengers are being relaxed, they remain in place. There is always the risk of considerable disruption to the business if for one reason or another employees are not able to return to work at the end of their holiday.

4. Can I ask employees where they are going on holiday in advance or where they went afterwards?

Our view on this is that employers can legitimately ask these questions in terms of their obligations to protect the health and safety of the work force. The information is also relevant in relation to whether quarantine on return to then UK is require. Employers should be very wary of employees who are not prepared to disclose this information.

5. What are my obligations as an employer in relation to enforcing compulsory quarantine?

Employees requiring to self-isolate on return to the UK are required to inform their employer. Employers must now knowingly allow an employee to attend anywhere other than the designated place of quarantine during the isolation period for any purpose related to the worker’s employment.

Employers that allow an employee it knows is returning from an amber listed country to return to work when they should be quarantining is committing a criminal offence punishable by a fine of £1,000 rising to £10,000 from the fourth offence onwards.

6. What is the position regarding pay during compulsory quarantine?

Employees who can work from home should be allowed to do so and paid accordingly. If they are actually sick whether with COVID-19 or something else normal sick pay rules apply.

There is no entitlement to SSP for someone who is quarantining but not sick.
We recommend that it is made clear to employees taking holidays abroad that periods of compulsory quarantine on return will be unpaid.

Employees who test positive while on holiday and are unable to return are entitled to be paid sick pay.

Please remember that we at WJM are here to help, please don't hesitate to get in touch if there is anything you think we can help with.

For any advice in relation to any particular aspects of the above, please contact a member of the Wright, Johnston & Mackenzie Employment team: Martin Stephen (mss@wjm.co.uk), Liam Entwistle (lae@wjm.co.uk), Andrew Wilson (ajpw@wjm.co.uk) and John Grant (jzg@wjm.co.uk)