Managing annual leave requests for international travel
Up until the 4th July the Foreign and Commonwealth Office had been advising against all but essential travel to all destinations around the world.
This was updated on the 4th July exempting certain countries and territories as they have assessed they do not pose an unacceptably high risk.
There is a list of exempt countries and territories on the gov.uk website that people can return from without needing to go into a period of quarantine when they return and this is effective from 10th July.
This does mean that there are some destinations that will require a period of quarantine on return to England.
In addition, the quarantine requirement applies when individuals have transited through a country not on the list. This might be in a situation where someone has to change planes in a non-exempt country.
Whilst it is good news that there are several countries where a period of quarantine is not required on return, there are still several countries where this is not the case and this may cause some HR challenges for people who have booked or would like to book holiday to those countries.
For employees who are able to work from home and they are travelling to or transiting through a non-exempt country, they would be able to self isolate at home and therefore work from home.
The challenge will be for those individuals who are not able to work from home when they return and need to self isolate.
How to manage an annual leave requests for travel to non-exempt countries
As discussed, if your employees request annual leave and they can work from home then they would be able to self-isolate at home and therefore continue to work from home for a period of quarantine, if necessary.
However, what happens if your employees can’t work from home? As a general approach, we recommend the following action:
- Make employees aware of the changes to the travel advice
- Ask employees to check if they are going to or transiting through any destination not on the list
- If they are, ask them to contact their line manager immediately to discuss
- Remind employees that any annual leave must be authorised before bookings are made
- Highlight that leave may not be authorised if the annual leave plus a period of self isolation would have too big an impact on the business.
- Be consistent in your approach to managing the challenges – inform / train your line managers on your policy for dealing with this to ensure all staff across the organisation are being treated equitably
- Have a Coronavirus Policy – this is a great way of communicating to staff how you will be dealing with a variety of matters during the pandemic and how they may different from the usual policy. This should include how you will be dealing with annual leave and gives you an opportunity to be really clear on your stance on the issue.
FAQs for managing annual leave requests involving travel
What do I do if an employee has already had leave authorised to a non-exempt country?
Consider the impact on the business of the employee being absent for their period of leave plus an additional 14 days.
In doing this you would also need to consider how many people would fall into this category. If you have 1 person, this is likely to be easier to accommodate than multiple people.
Discuss the situation with the employee and potential options for managing their return, such as unpaid leave, additional annual leave, perhaps a period of furlough, or working from home as a temporary measure?
In an extreme situation you may have to retract the authorisation for the annual leave and you would need to give notice equalling at least the same amount of notice as the period of annual leave.
This can get tricky and the business case for the retraction must be strong as the employee in this situation would most likely suffer financial loss from not going on the holiday. Therefore, we suggest taking advice before taking this action.
The most important element with all of this is communicating with staff and working through different options to see how the leave can be accommodated.
What do I do if an employee requests leave to a non-exempt country?
When individuals are requesting annual leave, ask them to confirm if they will be travelling to or transiting through a non-exempt country?
We would suggest reviewing the annual leave authorisation process to include this question and highlight that the request will need to be discussed with their manager.
As with pre-authorised requests for annual leave, you should consider the impact on the business of the employee being absent for their period of leave plus an additional 14 days for quarantine.
In doing this you would also need to consider how many people would fall into this category. If you have 1 person, this is likely to be easier to accommodate than multiple people.
Discuss the situation with the employee and potential options for managing their return, such as unpaid leave, additional annual leave, perhaps a period of furlough, or working from home as a temporary measure?
If it is not possible to authorise the leave because the total period of absence would be too great on the business, notify the employee of this and explain the reasons why.
Taking holiday during the coronavirus pandemic
Employees and workers, except for genuinely self-employed workers, have a statutory holiday entitlement under UK law of 5.6 weeks. This is made up of 4 weeks provided under EU law, and 1.6 weeks provided under UK national law.
It is recognised that because of the coronavirus pandemic, it will not be ‘reasonably practicable’ for many employees and workers to take their holiday entitlement this year.
As a result, the government introduced temporary legislation (The Working Time (Coronavirus) (Amendment) Regulations 2020 to allow those individuals to carry forward holiday entitlement into the next 2 years.
There were also questions around holiday for furloughed workers. The government have released further guidance for employers on holiday during the coronavirus pandemic, including further guidance on bank holidays. We’ll cover the FAQs below.
Furlough leave and holiday
In light of the current coronavirus pandemic, the UK Government have introduced a range of financial measures intended to support businesses and individuals through the crisis. One of those measures is the introduction of the Coronavirus Job Retention Scheme. The scheme enables employers to place an employee on Furlough Leave and claim a percentage of their wage costs, from the Government (subject to eligibility criteria).
However, a frequently asked question is how will holiday be affected if an employee is placed on Furlough Leave?
Can I place an employee on Furlough Leave and allow them to take holiday at the same time?
Yes, government guidance confirms that furloughed employees can take holiday without breaking a period of furlough leave.
Therefore, where an employee has already requested annual leave and have now been placed on furlough leave, they can take their holiday in the usual way. Similarly, if an employee wants to request a period of holiday during a furlough leave period, this should be considered in the normal way.
Ensure that furloughed workers still receive the correct holiday pay for holiday taken whilst on furlough leave.
How should I pay an employee who takes holiday during a period of Furlough Leave?
Government guidance reinforces that employees should receive ‘usual pay’ for holiday, with the view that the employee is not financially worse off for taking annual leave.
Employers should calculate the correct holiday pay for furloughed workers, and ensure they are paid correctly. If an employee’s holiday pay is above the rate of pay they receive on furlough leave, employers must pay the difference.
If the company is unable to fund the difference due to difficulties caused by the coronavirus, this would be a sufficient reason as to why it was not ‘reasonably practicable’ for an employee to take their holiday entitlement this year, and therefore carry forward holiday entitlement. Employees must be able to take this holiday entitlement and paid correctly for it, before it is lost after 2 years.
Does holiday continue to accrue during furlough leave?
Yes, employees that have been designated as “furloughed” will not suffer a break in service and therefore their holiday, both statutory and contractual, will continue to accrue as normal during this period.
Can an employer make an employee take holiday while on furlough leave?
The Working Time Regulations 1998 stipulate that employers can insist on an employee taking annual leave at a specific time, provided that they give twice the number of days’ notice that they want the employee to take as holiday. For example, if the employer needs to enforce a period of one week of annual leave, they must give two weeks’ notice.
The same principle applies during a period of Furlough leave, therefore an employer can insist on a period of time being taken as annual leave during this time if they feel it is beneficial to do so.
Carrying forward holiday entitlement
The government have introduced temporary legislation (The Working Time (Coronavirus) (Amendment) Regulations 2020 to allow individuals to carry forward holiday entitlement into the next 2 years, where it has not been ‘reasonably practicable’ for them to take it during the relevant leave year.
Can employees carry forward additional holiday entitlement?
The temporary amendment to the law only deals with the 4 weeks of annual leave provided for under EU law however the Working Time Regulations 1998 requires UK employers to provide an additional 1.6 weeks of annual leave, bringing the total minimum leave entitlement to 5.6 weeks per year. Regardless of this, many employers will already provide employees with more than the statutory minimum holiday entitlement. For any holiday that is in addition to 4 weeks, the employer can determine how much additional leave they will allow to be carried forward. It’s recommended that any agreement is confirmed in writing to employees.
Can employees carry holiday forward into the next holiday year when this isn’t our normal policy?
It’s likely that it’s not going to be possible for employees to use up all of their holiday entitlement in the holiday year. Where possible, it’s best practice to encourage staff to take their holiday however, the government have made provisions given that it’s likely this won’t be possible in all circumstances.
A temporary new law has been introduced which allows employees to carry over up to 4 weeks’ holiday over a 2-year period. This is applicable for holiday that was not taken because it has not been reasonably practicable to do so. This could be due to the fact they are having to self-isolate or have had a period of sickness preventing them from taking leave. This also applies if employees have not had time to take their holiday because they have continued working.
This should alleviate concerns of some employers who may have otherwise been faced with a situation when normality resumes, that all employees would be taking their leave before the end of the year.
How does an employer determine if it was not ‘reasonably practicable’ for an employee to take leave in this leave year?
The government guidance encourages employers to consider a number of factors when determining whether it was ‘reasonably practicable’ for an employee to take leave during the relevant leave year, such as:
- Whether the business faced significant increase in demand that would reasonably require an employee to continue working, and cannot be met through alternative practical measures
- the extent to which the business’ workforce is affected or disrupted by coronavirus and the practical options available to the business to provide cover
- the health of the worker and how soon they may need to take a period of rest
- the length of time remaining in the worker’s leave year
- the extent to which workers taking leave would impact the wider society’s response to coronavirus
- the ability of the rest of the workforce to cover the work of an employee on leave.
Do you need to give employees notice about the right to carry forward holiday entitlement?
There is no legal requirement to give employees notice that they can carry forward leave if they don’t take it. But, it is unlawful to prevent employees from taking their holiday entitlement.
It would therefore be best practice to inform employees about their ability to carry forward holiday entitlement and how much leave they are able to carry forward.
Can employees receive payment in lieu for carried leave?
Usual rules around payment in lieu apply to carried leave. Employers should encourage employees to use their holiday entitlement, instead of paying them in lieu.
If an employee leaves the employment of the company, they must be paid for leave that hadn’t been taken, including accrued annual leave for the relevant leave year, and any outstanding leave carried over under the coronavirus temporary legislation.
How do you manage carried holiday?
When an employee who has carried forward leave from a previous leave year wishes to take annual leave, this should be taken from the holiday entitlement due to expire first.
For example, as carried leave under the coronavirus legislation lasts for 2 years, they should be able to take any accrued annual leave from the relevant leave year first, as this would expire quicker than the carried leave.
Employers must have a good reason to refuse employees from taking ‘carried leave’ from a previous leave year on the days they request.
Employers can require employees to take their ‘carried leave’ first, but must ensure that the employee is able to take all of their holiday entitlement for the relevant year, in addition to the carried leave.
Bank holidays during coronavirus
There are a number of national bank holidays which occur during the calendar year. There is no statutory right to time off for bank holidays, but many employers include them in holiday entitlement. The way your employees will be able to take leave for bank holidays may be affected during coronavirus.
How are bank holidays affected by coronavirus?
If employees are contractually entitled to their bank holidays as time off, then you will need to pay them full pay for the bank holidays (unless you reach an agreement with them to take these at another time).
Those employees who have bank holidays as part of their total annual leave allowance, and where the business doesn’t normally close on a bank holiday, will need to request time off in the usual way, if they want to take a day off on a bank holiday.
How do furloughed workers take bank holidays?
If a bank holiday falls during a period of furlough leave, and the employee would have usually worked the bank holiday, then the furlough is unaffected by the bank holiday.
If the employee would normally take the bank holiday as annual leave, however, there are two options.
1.The employee can take the bank holiday as annual leave.
The employee takes the bank holiday as annual leave and received the correct holiday pay, without breaking a period of furlough. The employer can require the furloughed worker to take the bank holiday as holiday, providing the appropriate notice periods to the employee.
2. The bank holiday can be deferred.
The employee and employer agree that the bank holiday is not taken as annual leave and the day of holiday entitlement can be deferred to be taken at a later date. The worker must still receive their correct holiday entitlement.
Can bank holidays be deferred?
Yes, if the employee would normally take a bank holiday as annual leave, then the employer and employee can agree to defer the day of holiday entitlement to a later date.
Requiring employees to take or cancel annual leave
Employers should facilitate employees to take leave, where it is ‘reasonably practicable’ to do so. What is the guidance around requiring employees to take or cancel annual leave?
Can an employer make an employee take holiday?
The Working Time Regulations 1998 stipulate that employers can insist on an employee taking annual leave at a specific time, provided that they give twice the number of days’ notice that they want the employee to take as holiday. For example, if the employer needs to enforce a period of one week of annual leave, they must give two weeks’ notice.
The same principle applies during a period of Furlough leave, therefore an employer can insist on a period of time being taken as annual leave during this time if they feel it is beneficial to do so.
It is important to consider the quality of leave that an employee is able to take as a result of any coronavirus restrictions that could affect their ability to rest or relax, which is the purpose of annual leave, before requiring employees to use annual leave.
Employers should communicate with their employees about this and provide the reason that they wish employees to take their annual leave before requiring them to do so.
Can an employer ask employees to cancel annual leave requests?
Where employees had previously booked annual leave, it may no longer be convenient for those pre-approved dates to go ahead. If required, employers can cancel a period of annual leave that had previously been agreed. To do so they must give at least the same number of days’ notice as the original holiday request. For instance, if an employee was due to take 7 days annual leave, the employer must give 7 days’ notice to cancel it.
If employers are finding themselves having to do this, it’s advisable to discuss this with the affected employees first in order to outline the reasons behind it.
We hope you found this article useful. If you have any queries regarding holiday or furlough leave, please contact us on 0330 223 5253 or office@fitzgeraldhr.co.uk .
