Helen Dyke is a Senior Associate Solicitor in the Employment Team at Irwin Mitchell

@Helen_IMHRplus from @irwinmitchell shares some helpful employment law info on holidays abroad during the next stage of the Covid-19 pandemic  

Earlier this month, the transport secretary, Grant Shapps, said that people can 'start to think about foreign travel' again. He didn't say when the government will re-open international travel to holiday makers and those who wish to visit families living overseas, but we do know that it won't be before Monday 17 May. 

Many people will be anxious to fly off somewhere hot and sunny as soon as they can and with Whitsun half term approaching, many colleges are starting to think about how they should manage holiday requests for those members of staff who may have to quarantine afterwards.

What are the current Covid rules on international travel?

Only people who have a 'reasonable excuse' can travel outside of the UK and Ireland. These include people travelling for certain work purposes, those who are getting married or having a civil partnership (or attending the marriage or civil partnership of a close relative) and to provide medical visits or to provide care. You can read the full list of exemptions here

This excludes anyone who wants to go on holiday or to visit and socialise with relatives living overseas.

Do we know when the government will make a decision about re-starting international travel to holiday makers?

The government published its roadmap out of lockdown in February which indicated that international travel wouldn't re-start for most people until we reached 'step 3', and that wouldn't be any earlier than Monday 17 May. 

Since then it has conducted reviews of the 'roadmap' (the most recent of which was published on 5 April). That document makes it clear that the government wants to see a return to non-essential international travel, but will only allow this when it's safe to do so. That will depend on the state of the pandemic abroad, and the progress of vaccination programmes in other countries. 

The government has also set up the 'global travel taskforce' to develop a framework for a safe and sustainable return to international travel. It recommended that the government set up a traffic light system and categorise countries based on the following risk factors:

  • the percentage of their population that have been vaccinated
  • the rate of infection
  • the prevalence of variants of concern
  • the country’s access to reliable scientific data and genomic sequencing

 Will holiday makers have to quarantine when they return to the UK?

That depends on which countries they are returning from. There are no quarantine restrictions for anyone travelling from Ireland, the Isle of Man and the Channel Islands. 

In all other cases, restrictions for inbound passengers, such as 10-day managed quarantine, home quarantine, and stringent testing will remain in place - but will apply to people differently depending on whether the destination visited is categorised as ‘green’, ‘amber’ or ‘red’.

Green: arrivals must take a pre-departure test as well as a PCR test on or before day two of their arrival back into England. They don't have to quarantine when they return home unless they receive a positive result. Nor do they have to take any additional tests.

Amber: arrivals must quarantine at home for a period of 10 days and take a pre-departure test and a PCR test on day two and day eight with the option for Test to Release on day five to end self-isolation early.

Red: arrivals will be subject to restrictions currently in place for ‘red list’ countries which include a 10-day stay in a managed quarantine hotel, pre-departure testing and PCR testing on day two and eight.

Will people who have been vaccinated be able to avoid quarantine?

No. While having had both jabs may well open doors for UK citizens abroad, the government has not made any provision for people who have completed a course of vaccinations to be excused some or all of the restrictions on returning to the UK.

Who is responsible for paying for Covid-19 tests and/or the cost of quarantine hotels?

These costs have to be paid for by the traveller. The average cost of a PCR test is £128.00 but is expected to drop by May 17. If you have to quarantine in a hotel, the rate for one adult in one room for 10 days is £1,750. 

These costs will add a significant amount to the price of the average holiday abroad and will deter many people from travelling abroad.

When will we know which countries will be included in the red, amber and green lists? 

We don't expect this information will be published before the start of May. The government has said that it will give businesses (and holiday makers) at least a week's notice before it re-opens international travel. It's therefore possible that people won't know if they can go abroad on holiday and, in particular, what quarantine restrictions will be imposed until Monday 10 May. 

Those people who have already booked overseas holidays therefore may not get much time to decide whether to go ahead with their holiday, or to postpone or cancel it. 

Do we know which countries are likely to be on the green list?

The government already operates a de facto traffic light system for people arriving in the UK. Currently, Ireland is the only foreign country with a green status.

We don't yet know if many European countries will immediately be included in the green list. The independent newspaper has analysed data about infection rates in many popular destinations and has speculated that Iceland, Malta, Portugal and Finland may be the only European countries included in the first list. 

Further afield, it believes that Gibraltar, Morocco and Israel could be included, as well as some Caribbean islands and many countries in the Asia-Pacific region including Australia and New Zealand.

It's possible that the government will also consider individual islands for green list status which could include the Balearic Islands of Spain, some of the Azores in Portugal and potentially some Greek islands –although current infection rates are high.

However, even if a particular country is included on the green list, there's no guarantee that holiday makers will be able to visit, as individual countries will impose their own restrictions on overseas travellers which could include requiring them to quarantine for 10 or 14 days on arrival in their country.  

How much notice will the government give to travellers before countries move from the green to the amber list?

Last year, many people's holiday plans were thrown into chaos when the government made changes to its travel corridor scheme at very short notice. Many people scrambled to get home to avoid quarantine measures.

To ameliorate similar problems, the government will introduce a ‘green watchlist’ which will identify countries most at risk of moving from ‘green’ to ‘amber’. There's not much information about how this will work, but we believe that the government intends to give people around a week's notice of any change. That said, the government has made it clear that it 'will not hesitate to act immediately should the data show that countries risk ratings have changed'. 

This means that someone taking a two week break could find out part way through their holiday that they will have to quarantine when they return to the UK.

When will the government review restrictions on holidaying abroad? 

Restrictions will be formally reviewed on 28 June 2021 to take account of the domestic and international health picture, and to see whether current measures could be rolled back. Further formal reviews will take place at checkpoints no later than 31 July and 1 October 2021.

Can we ask staff asking to take holiday to tell us where they are going before we approve their request?

Yes, but you'll probably need to update your policy first. Most organisations simply ask staff to give minimum periods of notice to take leave and restrict the number of weeks' they can take at one particular time. 

If you use a holiday booking form, you could include a box for the employee to tick if they are holidaying abroad and ask them to identify the country or countries they are visiting.

Before you make any changes, you'll need to explain why you need this information and signpost where your staff can find up to date information about overseas travel. We recommend that you set out your expectations in a policy or write to employees so that they understand what might happen if they holiday abroad and are asked to self-quarantine afterwards. This should cover: notifying you if they have travelled abroad, reporting their absence (and how it will be recorded on their records), whether they will be paid during quarantine and, if not, whether they can take outstanding paid holiday during quarantine etc. 

Can we tell staff not to go abroad on holiday?

You can't normally dictate what your employees do in their own time, much less tell them where they can go on holiday. But, you can discourage them from booking leave until the government has clarified the position on international travel and make it clear they will have to follow any quarantine advice in place (which could be imposed without much notice) and won't be paid during this time.

Bear in mind though, that some people will have booked to go on holiday months ago and may decide to go if they can, even if they have to quarantine afterwards.

Can we cancel holiday leave to prevent staff travelling abroad?

In most cases, yes – but there are some risks attached. If the contract of employment or your holiday policy sets out how to cancel holiday, you must follow that. If there are no express provisions, the Working Time Regulations provide a mechanism for employers to cancel leave. Under Regulation 15(2)(b) you must give as much notice as the leave you want to cancel. Therefore, if you want to cancel two weeks’ leave you have to give two weeks’ written notice. You’ll need to explain to your staff why you have cancelled their holiday and tell them when and how they can re-book.

If you do decide to cancel someone’s holiday, they may ask you to compensate them for any cancellation charges they incur. They could also argue that you are acting unreasonably and are in breach of the implied term of mutual trust and confidence, which gives them the right to resign and claim constructive dismissal (they’ll need two years’ service).

In the context of colleges, cancelling holiday may be particularly difficult. Many educational staff are required to work during term time and are, generally, able to take holiday during closure periods without specifically asking to take time off. This means you are unlikely to know if/when your staff are going away on holiday unless you ask them.

Do our employees have to tell us if they are quarantining?

Anyone who is asked to quarantine must self-isolate unless they are exempted from the rules. 

Anyone who doesn't report for work must follow their employer's absence reporting procedure. Their absence should be recorded as 'authorised' unless they are actually sick.

Can we ask our staff to continue to work during quarantine?

You can’t ask anyone who is quarantining to return to their workplace and anyone who doesn't self-isolate, will commit a criminal offence. 

Any member of staff who has to self-quarantine will only be able to work if it is practical and feasible for them to work from home or from their quarantine hotel. If they can’t work remotely, you must not ask them to return to their workplace and must immediately send them home if they turn up.

Do we have to pay staff if they can’t work? 

In general, if any member of staff can’t work, you don’t have to pay them unless they are ill. However, your staff won’t be able to claim contractual sick pay unless their contractual terms clearly provide for this (which would be unusual). 

Anyone who has to quarantine but doesn't have coronavirus symptoms isn't entitled to SSP either. This will leave many employees out of pocket and you may have to consider asking staff to:

  • Take additional paid annual leave
  • Make up the 10 days’ leave over a period of time
  • Take unpaid leave

Helen Dyke is a Senior Associate Solicitor in the Employment Team at Irwin Mitchell

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