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COVID-19 - How to handle the holiday season

The sun is starting to come back out, pubs are open, schools will soon break up for the summer and newspapers are telling everyone they can now go on holiday, so your employees may well be feeling more upbeat!

Holiday season is often challenging for employers, who have to juggle business needs with employees’ holiday and childcare requests. But this year is likely to even more difficult, as you factor in furlough, quarantine and travel corridors amongst other issues…

Here are some top tips to navigate this holiday season:

  1. Have an open discussion with staff about their holiday plans as soon as possible.

Many workers have not taken holiday since lockdown began for a variety of reasons, including: working on the frontline; being too busy due to reduced staffing levels (e.g. due to furlough or sickness); not being able to travel abroad (or anywhere!) during lockdown and, therefore, not wanting to “waste” holiday; or already being absent from work due to furlough.

As workers have a substantial amount of accrued holiday to take, they may all rush to do so as travel restrictions are lifted and schools break up for the summer. This may also coincide with your business getting busier!

It is, therefore, important to establish your workers’ preferred holiday dates and childcare commitments (whilst schools and many holiday clubs are closed) as soon as possible, so that you can balance holiday requests fairly across your workforce, whilst also ensuring business continuity.

  1. Encourage (or require) staff, including furloughed staff, to take holiday.

Many workers have been (and remain) reluctant to take holiday due to lockdown, social distancing and travel restrictions, so many businesses are facing the challenge of substantial accrued holiday entitlements across their workforce. Untaken holiday is an issue for businesses, as staff may need or want to take this as business picks up and you need higher staffing levels. It is also an issue for workers’ health and well-being.

Employers should, therefore, engage with their workforce and explain the reasons for wanting them to take holiday.

If staff will not voluntarily take holiday, you can require them to do so by giving them twice the period of notice as the period of holiday you want them to take. However, we would recommend doing so in a balanced way, e.g. requiring all staff to take some (but not all) of their accrued holiday. It is important to tread carefully in this area due to:

  • the importance of good employee relations, morale and engagement at an already difficult time, especially as holiday is always an emotive topic;
  • workers’ new statutory right to carry forward (for two holiday years) up to four weeks’ holiday which they have been unable to take due to COVID-19; and
  • Government guidance that:

“If an employer requires a worker to take holiday while on furlough, the employer should consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday.”

  1. Make sure you pay the right amount for holiday taken during furlough.

Furloughed staff should receive their full pay during holiday periods. This will either be their normal rate of pay or, where their rate of pay varies, calculated on the basis of the average pay they received in the previous 52 working weeks.

Employers are obliged to pay the additional amounts over the grant, namely to “top up” the 80%.

  1. Consider whether you might want to use “flexible furlough” to bring back furloughed employees on a temporary, flexible basis to cover for colleagues who are on holiday or have childcare commitments.

As well as assisting the business, this is a helpful way to begin reintroducing furloughed employees back into the business and may boost their morale and mental well-being, especially if they have been furloughed for an extended period.

  1. Decide how you will handle holiday requests for employees who will be required to quarantine on their return.

Currently, people travelling to the UK must self-isolate (i.e. not leave the place they are staying, except in very limited circumstances) for the first 14 days they are back in the UK, unless they travelled from Ireland, the Channel Islands or the Isle of Man and were there for 14 days or more. During this self-isolation/quarantine, people may not attend work. Breaching these requirements is a criminal offence which can lead to a £1,000 fine.

From 10 July 2020, people will not be required to quarantine when they arrive back in England if they are returning from a country on the “travel corridor exemption list” (provided that they have not been to or stopped in a country that is not on the list in the previous 14 days). The current list of “travel corridors” can be found HERE and will be kept under review.

However, people will still need to self-isolate for 14 days if they have been to or stopped in a country that is not on the travel corridor exemption list.

You should carefully consider every holiday request where post-travel quarantine will be required, taking into account factors including:

  • whether this will have any impact on your business if an employee works from home in any event;
  • whether the holiday is already booked and paid for;
  • whether the holiday location can be changed (to a “travel corridor”) or the holiday can be cancelled and refunded;
  • whether the holiday was booked before lockdown and the introduction of travel restrictions (in which case it may well have been “reasonable” for the employee to book this) or afterwards (in which case it may not be!); and
  • the reason(s) for the worker’s choice of destination, e.g. are they visiting family abroad or travelling for religious reasons?

You then have a few options:

1. You can encourage employees to avoid travelling to “non-exempt” locations, but seeking to prohibit this will be difficult as:

    • trying to dictate what an employee can do with their free time is unlikely to be a lawful and reasonable instruction from an employer; and
    • there is a risk of indirect race discrimination if the ban disproportionately affects certain groups, e.g. who might want or need to travel to non-exempt locations to visit family or for religious reasons.

Whilst employers could try to defend an indirect discrimination claim by arguing that the ban is a “proportionate means of achieving a legitimate aim” (for example, to protect colleagues’ health and safety), it may not be reasonable if the only downside is the employee having to self-isolate after returning.

2. You can cancel annual leave that has already been authorised, provided that you give the minimum notice (namely, twice the period of notice as the period of holiday the employee requested- i.e. four weeks’ notice to cancel two week’s holiday).

However, if the employee has already booked and paid for their holiday (based on leave which you authorised before the pandemic) and cannot cancel or amend, it will likely cause them financial loss if you “un-authorise” that holiday, so this is not advisable.

3. You can allow them to take their holiday and either facilitate them working from home during the quarantine period or agree an alternative (see 6 below). This is likely to be reasonable where a holiday is already booked and paid for, as per (2) above.

  1. Plan for the impact of any 14-day quarantine periods on an employee’s work and wider team.

This should include a discussion with the employee before they go away regarding the 14-day rule and how this will be managed on their return. For example, can they work from home during the quarantine period? If so, you should allow them to do so and pay them as normal.

If they cannot work from home, the position regarding pay during quarantine is not entirely clear as:

  • They won’t generally be entitled to normal pay (unless you required them to travel to a non-exempt country for work purposes and, therefore, “caused” their quarantine, for example)
  • At present, Statutory Sick Pay (SSP) is not currently payable during post-travel quarantine.

The existing rules only enable claims for SSP if it is “known or reasonably suspected that the individual has been in contact with a case of, a relevant infection or contamination”. The fact that an employee has been travelling abroad does not automatically lead to a reasonable suspicion of contact with coronavirus (unless an entire holiday resort was locked down, for example).

Quarantining employees (who cannot work from home) could consider taking further paid annual leave (forced or voluntary), unpaid leave (whether parental, dependants’ or otherwise) or a mini sabbatical…?

  1. What if an employee becomes ill following a holiday period?

If an employee begins to show symptoms during the quarantine period, they would be required to begin a new 7-day period of self-isolation (from when symptoms started), during which they would be entitled to SSP.

If you have any questions regarding handling holiday during the pandemic or anything else, please contact Sarah Lee or another member of the employment team.

 

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.

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