What a year and a half it’s been – the COVID-19 pandemic, coupled with the steps taken to reduce its spread, has seen depression rates in the UK double and the euphoria around recent events like Euro 2020 and Wimbledon remind us how desperate we all are to get back to normal.
While many of us, particularly those of us north of the border, have already taken or are partway through our summer holiday, we thought it would be helpful to take a brief tour around the legal landscape of annual leave and tell you about some of the holiday-related issues we are helping our clients work through.
With all of the uncertainty around the traffic light system and whether a chosen destination is on the green list, it is understandable that many employees will be hoping to keep their plans flexible when it comes to when they take their summer holidays. From a business’s perspective, however, it is vital that you are able to plan your resources to ensure that your customers and clients receive the same service as always and that means knowing that you have enough staff to do the work at any given time. To that end, while it is always good to demonstrate flexibility towards your staff, an employer is entitled to make it clear that holidays need to be scheduled to meet the needs of the business as well as the individual and that, while a day or two either way may not make a significant difference, wholesale changes to plans cannot generally be accommodated.
The need to quarantine on return from holiday – red, amber, green
We are all familiar with the ups and downs of holidaymakers and tour operators over the last year as countries moved in and out of the COVID danger list and the need for quarantine on return. Holidaymakers and tour operators alike were caught out by last-minute changes meaning that holidaying Brits had to return to the UK within 48 hours or would have to quarantine on return. The situation also caused resourcing issues for employers who were unprepared for the extended leave of those who missed the proverbial boat (or plane).
The current requirement, when returning from an amber list country, is that you must quarantine at home for 10 days on return. Although this will change for those who are fully vaccinated or under 18 arriving in England after 19 July, the position has not yet changed, and may not change, elsewhere in the UK.
As a result of this forthcoming change – and in the event that it is followed by the devolved governments in the UK – the loss of staff as a result of the need to quarantine on return from holiday may be a thing of the past. Employers do however need to think about how they will treat extended leave as a result of the need to quarantine on return from holiday. This could either be as a result of the changed risk status of the destination or it could be as a result of the vaccination status of the holidaying employee. As such, if an employee is departing on holiday knowing that they will definitely have to quarantine on their return or that there is a high likelihood that they will have to do so, what is the business’s position as their employer?
Much will obviously depend on whether the work- or a specific employee’s work – can be done entirely from home. However, having an agreed policy – possibly even with input from the staff themselves – will help to avoid allegations of favouritism or cries of “it’s not fair!”. Usually, being asked to participate in discussions about something which could affect everyone, brings the best out in people. Of course, different people will have different reasons for wanting or needing to travel and any policy has to be sufficiently adaptable to allow for extenuating circumstances, such as the need to see family after what has – for many non-UK nationals – been a long period of separation.
The reluctant holiday-goer
There are a number of reasons why some employees may be reluctant to take holidays at the present time. Many employees love to travel and always use their holidays for that purpose: as such, they may simply see no point in taking leave until such time as they are able to travel freely again. For these employees, it may be necessary to require them to take some of their statutory holiday entitlement by giving notice of the date(s) on which they are required to take leave. Under the Working Time Regulations, this can be done in writing by giving twice as much notice as the period of leave. For example, if you want someone to take two weeks’ leave, you need to give them four weeks’ written notice.
By midnight on 14 June 2021, 11.6 million employee jobs had been furloughed through the Government’s Coronavirus job retention scheme, at a cost of £65.9 billion. Although the Scheme is coming to an end on 30 September, over 2 million employees in the UK are currently either fully or flexibly furloughed. These employees continue to accrue annual leave whether or not they are fully or flexibly furloughed.
For employers who have not been thinking about this, what it means is that by the time they return to work fully on 1 October, for those with a holiday year commencing 1 January, they will have accrued 9 months’ worth of holiday entitlement. Based on a normal full-time role, their accrued (statutory) entitlement will therefore be 21 days, although their actual contractual entitlement may be greater. Using the approach set out above, employers can give notice to the furloughed staff of the date(s) on which they wish their leave to be taken between now and the end of the Scheme. This is equally relevant in the event that the employer is considering making redundancies when the Scheme comes to an end. If the accrued holiday is not used up before the end of the employment, the employer will be required to pay the employee for their accrued but untaken holiday entitlement which can significantly increase costs.
Get in touch
Should you have any questions on anything covered in this article or employment matters generally, please get in touch with Dawn Robertson at firstname.lastname@example.org or on + 1 44 (0)131 220 9579.
This article is one of a series intended to de-mystify common legal issues for the non-lawyer and entrepreneur audience – they are designed to foster discussion and is by no means exhaustive. These materials are for informational purposes only. Nothing herein is intended nor should be regarded as legal advice. The distribution of this article to any person does not establish an attorney-client relationship with our firm. Rooney Nimmo assumes no liability in connection with the use of this publication. This bulletin is considered attorney advertising under the applicable rules of New York state. Rooney Nimmo UK is regulated by the Law Society of Scotland and Rooney Nimmo US by the New York rules of professional conduct. All attorneys and solicitors listed in this firm stipulate their jurisdictional limitations. Rooney Nimmo in the USA is a law firm registered as a New York State professional corporation.