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Managing employees during the pandemic

Last updated:29/03/2021

  1. Are there particular issues an employer should consider in relation to employees who are temporarily working from home due to Covid-19? 
  2. What are the requirements where an employee returns/travels to England from overseas?
  3. How should we manage employees who are subject to the 10 day quarantine rules, or who have booked or wish to book a personal trip overseas bearing in mind the 10 day quarantine rules?
  4. What are the employment implications of the requirement for passengers returning to/travelling to England to present evidence of a negative Covid-19 test result before they travel?
  5. Can we prevent employees from taking holiday, e.g. because we need all hands on deck during a business recovery period, or because we don’t want them travelling for safety reasons?
  6. What if employees want to cancel their booked annual leave?
  7. If we need to implement a longer than usual annual shutdown because of reduced demand or supply chain disruption due to the pandemic, can we require employees to take additional holiday to cover this?
  8. If an employee has to self-isolate during or shortly before a period of booked annual leave, can they reclassify the annual leave as sick leave?
  9. Can we continue with disciplinary and grievance processes during the Covid-19 crisis?
  10. We’re due to on-board some new employees next week. What should we do about carrying out right-to-work checks given that we may not be able to meet the employees in person?
  11. Will Covid-19 impact on a migrant employee’s application for indefinite leave to remain (ILR)?
  12. What legal obligations should employers keep in mind when making decisions relating to Covid-19?

1. Are there particular issues an employer should consider in relation to employees who are temporarily working from home due to Covid-19? (Last updated 18/03/2021)

On 4 January 2021, the Government announced that England would enter a third national lockdown.  Under the lockdown rules, everyone must work from home unless they cannot reasonably do so – and it is important to note that this instruction to work from home will remain in place even as lockdown restrictions are gradually eased over the coming months under the Government’s roadmap. However, the guidance acknowledges that working from home may not always be possible in all sectors – including manufacturing – and specifies that employees who cannot work from home are permitted to leave home to attend the workplace. (Note that the clinically extremely vulnerable are advised to shield until 31 March and should therefore not attend work. From 1 April, the shielding guidance will be relaxed and the clinically extremely vulnerable may be able to attend the workplace if they cannot work from home – see question 2 of our FAQs on ‘Health and safety measures’ for further information).

It is important for employers to consider the health and safety implications of home-working; employers have the same health and safety responsibilities for home-workers as for any other employees. The Health and Safety Executive guidance notes that when someone is working from home, whether permanently or temporarily, their employer should consider: 

  • How to keep in touch with them 
  • What work they will be doing and for how long 
  • Whether that work can be done safely 
  • Whether any control measures need to be put in place to protect them 

From an employee wellbeing perspective, it is important to have regular communications with those who are working from home, to make sure they are healthy and safe and that they do not feel disconnected or isolated. 

There are also potential data protection risks to consider, as the home working environment may present challenges regarding data security. To help address these issues, employees should be reminded of the importance of: ensuring proper password protection on any home-based devices; ensuring secure access to the internet from home; allowing security software and firewall updates to install regularly (e.g. overnight); not opening suspicious emails; and ensuring documents are stored and disposed of safely. The Information Commissioner’s Office (ICO) has produced guidance on the data security issues that employers and employees should consider in relation to home working, with tips on areas such as cloud storage, remote applications and email. 

As employers will remain the data controller of any personal data their employees process in the course of their employment, employees should also be reminded how to deal with any personal data breach they might experience while working from home. The 72-hour timeframe for notifying the ICO of personal data breaches remains in force during the Covid-19 crisis, and the ICO’s publication on its regulatory approach, updated on 24 September, no longer includes the acknowledgment (that appeared in the previous version) that the pandemic “may impact” on organisations’ ability to meet this deadline. It is therefore important to have a solid incident response plan in place so that everyone knows what a data breach looks like and who they should report it to. (For further information on data protection considerations, see the FAQs on ‘Data protection during the pandemic’.)

2. What are the requirements where an employee returns/travels to England from overseas? (Last updated 29/03/2021)

Under the lockdown rules applicable in England, people are not permitted to travel other than for a legally permitted reason, such as where this is necessary for work. From 8 March, subject to certain limited exemptions, people wishing to travel internationally from England must complete a travel declaration form confirming that they have a permitted reason for travel, which they may be required to present at the point of departure from England. Failure to comply with this requirement is a criminal offence punishable by a fine. 

The information set out below concerning the requirements for travel to England is applicable where people arrive here following permitted international travel (and we assume it will continue to apply once the current strict lockdown restrictions are lifted and broader travel into England is permitted again).  In summary, people returning to/arriving in England from overseas are required to self-isolate for a 10 day period (the quarantine period). The quarantine rules were first introduced on 8 June 2020 and imposed a quarantine period of 14 days. The quarantine period was reduced to 10 days with effect from 14 December 2020.

Below, we summarise how the quarantine and other requirements operate for individuals travelling to and arriving in England. The devolved administrations have separate powers over the lockdown and travel quarantine measures in their respective countries, so the position in Scotland, Wales and Northern Ireland may differ. 

Pre-travel testing

Subject to limited exceptions (see below), everyone arriving in England, including British nationals and UK residents, must present evidence of a negative Covid-19 test result before they travel here. The test must have been taken in the three days before they depart for England. A person arriving in England without proof of a negative test could face a £500 fine. A person who tests positive must not travel and must follow local rules and guidance for positive coronavirus cases. The Government guidance sets out further details, including information on the types of tests that are considered acceptable. See question 4, below, for further information on the employment implications of the pre-travel testing requirement.

Passenger locator form

Subject to limited exceptions (see below), everyone arriving in England, including British nationals UK residents, must complete a ‘passenger locator’ form online before they travel to the UK. 
 
The passenger locator form requires the individual to provide contact and travel information, including the address where they will be staying (if applicable), so that they can be contacted if they, or someone they have been in contact with, develop the virus, and to enable their compliance with the self-isolation requirement to be monitored. The individual will also need to provide details of countries or territories they have been in or through during the previous 10 days.

Providing false or deliberately misleading information when filling out a passenger locator form is an offence, punishable by a fine of up to £10,000, imprisonment for up to 10 years, or both.

Travel testing

Subject to limited exceptions (see below), everyone arriving in England, including British nationals UK residents, is required to book and pay for a ‘travel test package’. The package includes a Covid-19 test to be taken on or before day 2 of their quarantine and a further Covid-19 test on or after day 8. The first test is intended to monitor the different variants of Covid-19 and the second test is to check that the individual does not have Covid-19.

Individuals will not be able to leave quarantine until they have both received a negative result from their day 8 test and quarantined for 10 days. If an individual does not take the tests, they may face a penalty of up to £2,000.

If an individual tests positive on either test, they must quarantine for a further 10 days from the day they took the test. If the test result shows that the individual has a variant of coronavirus known as a ‘variant of concern’, the individual’s contacts will be asked to be tested.

Self-isolation at home

Subject to limited exceptions (see below), everyone arriving in England, including British nationals UK residents, is required to self-isolate for 10 days on arrival. Passengers who have not been in or through a country that is subject to a travel ban (see below) during the 10 days before their travel to England may self-isolate at home, at someone else’s home, or in a hotel or other temporary accommodation. 

According to the Government guidance, self-isolation during quarantine means that individuals must not leave the place where they are self-isolating other than in certain specified exceptional circumstances. They should not exercise outdoors, except in their own garden, and they should not have visitors, including friends and family, unless those visitors are providing essential support.

Breach of the quarantine rules means that an individual can be liable for a fine of up to £10,000.

Test to release for international travel

Under the ‘test to release for international travel’ scheme, anyone who has not been in or through a country that is subject to a travel ban (see below) during the 10 days before their travel to England can pay to take a Covid-19 test via a private test provider five full days after they arrive in the UK. If the result is negative, the individual can stop self-isolating. An individual cannot rely on a negative test result from a test taken via the NHS to end their travel quarantine self-isolation early. 

Note that individuals who end their quarantine early following a negative test result under the test to release scheme must still complete the ‘day 8’ test booked as part of their ‘travel test package’ (see above).

Travel ban countries

Individuals who have been in or through a country that is subject to a travel ban during the 10 days before their travel to England will be refused entry, unless they are a British national, an Irish national, or a UK resident. 

British and Irish nationals and UK residents who arrive in England having travelled in or through a country that is subject to a travel ban are required to provide evidence of a negative Covid-19 test before they travel, complete the passenger locator form and self-isolate for 10 days on arrival. However, they are not permitted self-isolate at home, but instead must do so in a ‘managed quarantine hotel’. 

Government guidance specifies that individuals must book and pay for a ‘quarantine package’ before they travel to England. This includes accommodation in a managed quarantine hotel, quarantine transport and the ‘travel test package’ for Covid-19 tests on day 2 and day 8 of quarantine. The initial price of the quarantine package is £1,750 for one adult.

Exemptions – Common Travel Area

Individuals travelling to England from Ireland, the Channel Islands and the Isle of Man (the Common Travel Area) do not need to complete a pre-travel test, fill in the passenger locator form, book a travel test package, or self-isolate on arrival in England, provided that they have not been outside the Common Travel Area in the past 10 days.

Exemptions – job-related

The Government guidance provides a number of limited exceptions to the self-isolation requirements for people in particular occupations, unless they are travelling from/have been in a country that is subject to a travel ban in the last 10 days. You should read these carefully to consider if any might apply to any of your employees. Some key exceptions include:
  • drivers of goods vehicles;
  • in some circumstances, workers engaged in emergency works relating to certain essential services (such as water supplies, sewerage services, electricity generation, rail maintenance, off-shore installations, data infrastructure, etc.);
  • certain workers with specialist technical skills where those skills are essential to ensure the continued production and supply of goods;
  • some medical professionals; and
  • persons who reside in the UK and who pursue activities as employed or self-employed persons in another country to which they usually go at least once a week.

Individuals who fall within these exceptions may still have to comply with certain aspects of the Covid-19 travel requirements. For example, most still have to provide their contact information, present evidence of a negative Covid-19 test before they travel and take Covid-19 tests on days 2 and 8 following their arrival (or, in some cases, comply with a bespoke post-travel testing regime which may involve taking additional tests on particular days). However, they are not required to self-isolate in the same way as individuals who are not covered by an exception. Some may not have to self-isolate at all, whereas others have to self-isolate but are permitted to leave their accommodation for the purposes of conducting their work. All are required to provide evidence at the English border to show that they are covered by an exception. What evidence is required depends on the particular exception relied upon, but may be, for example a letter from the individual’s employer which includes the employer’s contact details and confirmation that the individual’s travel to England is essential for their work here. 

The guidance that sets out the exceptions provides only very limited explanation as to how they are intended to apply, but the Government have indicated to us that they expect employers to interpret the exceptions for themselves to determine whether any of them apply to their workers; there is no pre-approval process for individuals who have not been in or through a country that is subject to a travel ban during the 10 days before their travel to England. 

Some of the exceptions are not available to individuals who have been in or through a country that is subject to a travel ban during the 10 days before their travel to England. The exceptions that do remain available to individuals who have been in or through a travel ban country are more narrowly construed, so as to apply only where the work is “necessary to facilitate essential government work or essential state business”. The employer must apply to the relevant Government department for pre-approval if they wish to rely on an exception in such cases.   

It is also worth noting that, although it is not apparent from the guidance, the Government have indicated to us that while the exemptions are intended to cover workers whose travel into England is essential for the purposes of their work here, they are not designed to allow such workers to take holidays overseas without self-isolating in the ordinary way upon their return to England. 

Exemptions – Travel corridors

In July 2020, the Government introduced a list of ‘travel corridor’ countries, whose risk level for transmission of the virus was considered to be lower. Travellers arriving in England from any of these countries were exempt from the self-isolation requirement unless they had travelled in or through any non-exempt country in the past 10 days. However, they were still required to complete the passenger locator form when returning.

On 18 January 2021, all travel corridors were suspended in order to try to prevent other variants of Covid-19 from spreading in the UK. It is not clear whether travel corridors will be reintroduced in the future.

Implications for employers

Employers with at least 50 employees who require their staff to travel abroad for work on a regular basis, are subject to an ‘employer testing duty’. This requires them to take reasonable steps to facilitate their staff completing any required post-travel testing – including any bespoke testing requirements that apply to jobs that benefit from exceptions to the general post-travel quarantine rules (see above). The Government guidance on the employer testing duty indicates that ‘reasonable steps’ might involve: 

  • communicating testing requirements to the workforce when they are travelling for work; 
  • establishing workplace testing or providing employees with access to home testing kits; and
  • supporting access and signposting employees to testing outside the workplace. 

Employers should strongly encourage their employees to comply with relevant testing requirements, but are not required to monitor their compliance.

Note also that, under regulations that came into force on 28 September 2020, individuals who are required to self-isolate on return from overseas travel and who would be due to work during the self-isolation period must inform their employer of the fact that they are required to self-isolate as soon as reasonably practicable and, in any event, before they are next due to work. It is an offence punishable by a fine for an employer who is aware of an individual’s requirement to self-isolate knowingly to allow the individual, for any purpose relating to their employment, to attend any place other than the place where they are self-isolating. Company directors can be personally liable if the offence is committed with their consent or connivance or is attributable to their negligence. Fines start at £1,000 but could increase up to £10,000 for repeat offences and for the most egregious breaches. When the Government announced these regulations, it indicated that preventing others from self-isolating would be seen as an egregious breach. In view of these regulations, an employer should not allow any employee whom it knows is required to self-isolate to attend work for any reason during the self-isolation period. Self-isolating employees who are well enough and are able to do so should be enabled to work from home wherever possible – see question 3, below, on how to manage employees who cannot work from home during quarantine.

3. How should we manage employees who are subject to the 10 day quarantine rules, or who have booked or wish to book a personal trip overseas bearing in mind the 10 day quarantine rules? (Last updated 18/03/2021)

Under the lockdown rules applicable in England, people are not permitted to travel other than for a legally permitted reason, such as where this is necessary for work. The information set out below concerning the management of employees’ holidays and the quarantine rules will, however, be relevant once the current lockdown restrictions are lifted.

If an employee who has to quarantine on return from overseas travel can work remotely (i.e. from home or from a managed quarantine hotel), then they can continue to work from home during the quarantine period and should be paid their normal pay. The possibility of remote working is reflected in the Government guidance on self-isolation during quarantine and employment rights, which recommends that employees speak to their employer about working from home before they travel.

If working remotely is not possible, the employee will not be able to work. This raises the question of how employers manage employees who take a personal trip overseas (to a non-exempt country or territory, when the travel corridors scheme is in operation) and are required to enter a 10 day quarantine period on their return. The ‘Test to Release for International Travel’ scheme, may allow individuals arriving in England to end their self-isolation early if they test negative for Covid-19, provided they had not been in or through a country that is subject to a travel ban (see question 2 above, for further details). However, such tests are only available five full days after an individual returns to England, or if the travel corridors scheme is reintroduced, returns from a non-exempt country or territory, so the individual will still have to quarantine for an initial period and while they wait for their test result. In addition, only tests conducted by approved private providers can be considered and the cost of such tests means that not all employees will be willing or able to obtain one. 

The Government guidance on self-isolation during quarantine and employment rights does not mention sick pay as a possibility. Indeed, the Government’s guidance on SSP makes clear that employees cannot get SSP if they are self-isolating after entering or returning to the UK and they do not need to self-isolate for any other reason. This is helpful confirmation for employers, as it gives a good justification for not paying company sick pay during employee quarantine either.

Since SSP is not payable to facilitate the taking of quarantine leave, you could provide that employees must book additional holiday to cover this extra time off. If employees do not have enough holiday to take to cover the quarantine period, you could allow them to take unpaid ‘quarantine leave’ instead. 

Some employers may wonder whether they can place employees on furlough under the Coronavirus Job Retention Scheme (‘the Extended CJRS’) during their holiday and/or any subsequent quarantine period. However, the Government guidance on furlough warns that employees should not be placed on furlough for a period “just because” they are on holiday for that period. We assume that this is intended to prevent employers from using the Extended CJRS where they do not otherwise need it, simply to subsidise the cost of employees’ holiday pay. See question 14 of our FAQs on the Extended CJRS for further information.

For personal overseas travel that is arranged after you have communicated your approach to the quarantine period, you could also provide that if an employee has not agreed with you before they travel overseas that they can be absent for the quarantine period, you can treat the absence as unauthorised and take disciplinary action.

Note, though, that we do not recommend that you instruct employees not to make personal trips overseas. Instead, it is important that you communicate clearly to employees what your policy on quarantine periods is, and that it may change depending on any future Government guidance on how employers should treat them. In addition, we would suggest that you explain to employees the Government rules on contact forms, pre- and post-travel testing and quarantine periods for returning travellers (see question 3, above). You may want to reiterate processes for booking holiday, restating your right to refuse holiday requests and the requirement for employees to get their holiday request approved before booking any travel. Knowing what absence is permitted, the status of that absence and whether or how much they will be paid may influence employees’ behaviour when they consider where they wish to travel for their holidays, e.g. it could dissuade someone from booking a long weekend trip abroad. We also suggest that you make clear to employees that any breach of the quarantine rules will be treated as gross misconduct. 

You could highlight to employees the availability of the ‘Test to Release for International Travel’ scheme (see above), which might enable them to end their self-isolation early. However, given the cost of such tests, we would not recommend that you require or pressure employees to take part in the scheme. It is also worth bearing in mind that employees might ask if you would fund such tests for them. If you are considering this, you will need to ensure that whatever approach you take is fair and consistent and avoids discrimination and we recommend that you seek advice on your particular circumstances.

If an employee has complied with quarantine requirements, then unless they have developed Covid-19 symptoms or are otherwise required to self-isolate under another aspect of the Government guidance, from a health and safety perspective it should be safe for you to allow them to re-enter the workplace at the end of the quarantine period despite their travel.

The travel corridors (see question 2, above) are currently suspended, so all travellers returning to England must self-isolate for 10 days on their return. Assuming that travel corridors are reintroduced in the future, it is worth noting that, as the list of travel corridor countries would be kept under constant review, an employee may book a holiday to a country that is exempt from the 10 day self-isolation requirement at the time of booking, but for which the self-isolation requirement is subsequently imposed or re-imposed shortly before the employee departs for their holiday or while the employee is away. In these circumstances, employers will need to take a flexible approach to managing the employee’s quarantine on their return. 

Employers could, for example, decide that in these circumstances employees will usually either be allowed to take additional holiday, or be granted unpaid leave to cover the quarantine period. However, if the self-isolation requirement is imposed sufficiently far in advance of an employee’s departure and their extended absence due to quarantine would cause operational difficulties, the employer might wish to discuss with the employee the possibility of cancelling the holiday. Employers should be careful how they handle any such requests for employees to cancel booked holidays – see further question 5, below. It is important for employers to communicate clearly the approach that they will take in such situations so that employees understand the possible implications if the list of travel corridor countries is amended at short notice. 

Finally, it is worth noting that the Government guidance on self-isolation during quarantine and employment rights identifies dismissal as a “last resort” for dealing with employees who have to quarantine on return from overseas travel. The guidance flags the need for employers to have a fair reason for dismissal and follow a fair process in order to avoid the risk of an unfair dismissal claim. Notwithstanding the fact that the Government guidance refers to dismissal as a possibility, we would strongly caution employers against dismissing employees simply because they have to quarantine on return from overseas travel as this is likely to be unfair in most cases. If you are considering taking disciplinary action or dismissing an employee in relation to post-travel quarantine, we suggest that you take advice on your particular circumstances. 

4. What are the employment implications of the requirement for passengers returning to/travelling to England to present evidence of a negative Covid-19 test result before they travel? (Last updated 12/02/2021)

Under the lockdown rules applicable in England, people are not permitted to travel other than for a legally permitted reason, such as where this is necessary for work. The information set out below concerning pre-travel testing is, however, relevant for permitted work-related travel and will, we assume, be relevant to employees’ leisure travel once the current lockdown restrictions are lifted.

As of 4am on 18 January 2021, passengers arriving in England from abroad must present proof of a negative Covid-19 test result. (Similar pre-travel testing requirements apply for passengers arriving in Scotland, Wales and Northern Ireland.) 

The Government guidance on pre-travel testing specifies that this requirement applies to all passengers arriving in England, even if they are UK citizens and/or they are travelling from a country on the travel corridors list (see question 2, above – although note that all travel corridors are currently suspended). 

The test must be taken in the three days before travel – e.g. if an individual travels on a Friday, the earliest they can take their test is Tuesday. 

There are a limited number of exemptions, e.g. for children under 11; people travelling here for urgent medical treatment where it is not reasonably practicable for them to obtain a test in the three days before they travel; and people in certain specified jobs such as hauliers, transport crew, etc. 

Passengers who are not exempt may be denied boarding for their booked transport if they fail to present the required proof. 

As noted at question 2, above, the quarantine self-isolation requirements still apply to passengers who present proof of a negative Covid-19 test result before travel.

If a passenger receives a positive test result, they will not be permitted to travel and will be required to follow local rules and guidance for positive Coronavirus cases in the country they are in. 

Employers will therefore need to consider how to manage an employee who is unable to return from annual leave on time because they tested positive for Covid-19 when they took their pre-travel test:

  • It is likely that local rules will require the employee to self-isolate for at least some time following the positive test result. 
  • If the employee is well enough and is able effectively to carry out their work remotely from abroad, the simplest course of action would be to allow them to work remotely and pay them as normal while they are self-isolating.
  • If the employee is sufficiently unwell that they would not be capable of work in any event, they should be treated as on sick leave and would be entitled to SSP (and company sick pay, if applicable). 
  • If the employee is asymptomatic or has only mild symptoms, but due to the self-isolation requirement is unable to work, they would be deemed incapable of work and entitled to SSP under the applicable UK regulations. These regulations provide for SSP entitlement during self-isolation following a positive Covid-19 test result to continue for 11 days starting on the earlier of the date the employee started showing symptoms or the date the test was taken. If Coronavirus symptoms continue beyond those 11 days, SSP entitlement is extended accordingly. (The employee may potentially also be entitled to company sick pay, if applicable.)

Since a pre-travel test can be taken up to 72 hours before travel, it is worth noting that employees may receive a positive test result and have to begin self-isolating several days before they are actually due to return to work. In these circumstances, employees may seek to reclassify affected days of their annual leave as sickness absence – see further question 8, below, for discussion of employees’ entitlement to reclassify holiday in this way. 

5. Can we prevent employees from taking holiday, e.g. because we need all hands on deck during a business recovery period, or because we don’t want them travelling for safety reasons? (Last updated 05/01/2021)

Under the lockdown rules applicable in England, people are not permitted to travel other than for a legally permitted reason, such as where this is necessary for work. Accordingly, employees are unlikely to want to take much holiday during the lockdown period. However, employers may need to give the information set out below careful consideration if they anticipate lots of employees wishing to take holiday once the lockdown restrictions are lifted. 

If an employer wishes to prevent employees from taking holiday on particular dates, for example because it needs all employees at work during a business recovery period, it can do so by giving notice in accordance with the Working Time Regulations (WTR), which require the employer to give as many days’ notice as the period of holiday to which the notice relates.

Generally, an employer should exercise caution if it wishes to cancel a period of annual leave which it had previously agreed an employee could take. Cancelling holiday at short notice will be unpopular and may damage employee relations. In addition, if an employee had made plans, e.g. to travel, they may seek compensation from the employer in respect of any cancellation charges that they incur. It is also worth noting that if you act unreasonably in cancelling an employee’s holiday plans, there is a risk that this could amount to a breach of the implied duty of mutual trust and confidence. This may be a particular issue where an employee had agreed annual leave for an overseas holiday before the UK’s quarantine rules for travellers returning from overseas were introduced, or where an employee had booked a holiday to a country that was exempt from the quarantine self-isolation requirement at the time of booking but has since had that exemption removed, and their employer wishes to cancel that agreed annual leave because it cannot accommodate the employee being absent from work for an additional ten days of quarantine – see questions 2 and 3, above.

If you don’t want employees to travel for safety reasons, you should bear in mind that, as noted at question 3, above, if an employee has complied with quarantine requirements, then unless they have developed Covid-19 symptoms or are otherwise required to self-isolate under another aspect of the Government guidance, from a health and safety perspective it should be safe for you to allow them to re-enter the workplace at the end of the quarantine period despite their overseas travel. Accordingly, it may not be reasonable for you to seek to restrict employees’ travel plans for this reason.

Employers that prevent employees from taking holiday on particular dates should also be aware of their obligation to enable all employees to take their annual leave. Usually, this must be during the relevant holiday year. However, on 27 March 2020, the Government introduced regulations allowing workers to carry forward up to four weeks’ annual leave into the next two leave years, if they have been unable to take it due to Covid-19 (four weeks being the minimum annual leave under the EU Working Time Directive). 

The Government press release explaining the changes to the rules on carry forward of annual leave stated that they will give employers the flexibility to allow workers to carry over leave at a time when granting annual leave could leave them short-staffed and enable workers to continue working in the national effort against Covid-19 without losing out on their holiday entitlement.

Employers that require employees not to take holiday at a particular time should therefore consider whether this will mean employees have holiday to carry forward under these regulations. Government guidance on holiday entitlement and pay during coronavirus notes that employers should do everything reasonably practicable to ensure that employees can take as much of their leave as possible in the holiday year to which it relates. They should consider various factors when determining whether an employee must be permitted to carry holiday forward under the regulations, such as:

  • whether the business has faced a significant increase in demand due to coronavirus that would reasonably require the worker to continue to be at work and cannot be met through alternative practical measures;
  • the extent to which the business’ workforce is disrupted by the coronavirus and the practical options available to the business to provide temporary cover of essential activities;
  • the health of the worker and how soon they need to take a period of rest and relaxation;
  • the length of time remaining in the worker’s leave year, to enable the worker to take holiday at a later date within the leave year;
  • the extent to which the worker taking leave would impact on wider society’s response to, and recovery from, the coronavirus situation; and
  • the ability of the remainder of the available workforce to provide cover for the worker going on leave.

Where holiday is carried forward, the guidance emphasises that it is best practice to give employees the opportunity to take it at the earliest practicable opportunity. Members can access further guidance on how to handle holiday that has been carried forward in the HR & Legal Resources section of our website.

6. If we need to implement a longer than usual annual shutdown because of reduced demand or supply chain disruption due to the pandemic, can we require employees to take additional holiday to cover this? (Last updated 05/01/2021)

It is standard practice for employees to be required to take holiday during a planned annual shutdown. An employer that is implementing a longer shutdown than usual will need to consider whether it will also require employees to take holiday during the extension to the shutdown. 

If it does so, the employer will of course have to ensure that it pays employees in full for the extended shutdown period in order to comply with the law on holiday pay. 

However, requiring employees to use their holiday entitlement during an extended shutdown is likely to give rise to practical and employee relations issues. For example, if the company’s holiday year runs from January to December, some employees may not have enough holiday left to cover an extension to a planned annual shutdown over the Christmas period. Alternatively, if an annual shutdown takes place early on in the company’s holiday year, employees may be unhappy about being required to use additional holiday to cover an extension to that shutdown, as they may prefer to save their holiday for later in the year.

The guidance on the Coronavirus Job Retention Scheme ('Extended CJRS') specifies that employees should not be placed on furlough “just because” they are going to be on holiday for a period. As discussed at questions 14, 16 and 17 of our FAQs on the Extended CJRS, we think that this is intended to prevent employers from using the Extended CJRS where they do not otherwise need it, simply to subsidise the cost of employees’ holiday pay, but that it may be possible to furlough employees during any extended period of shutdown that is required as a result of the pandemic. 

7. What if employees want to cancel their booked annual leave? (Last updated 05/01/2021)

Under the lockdown rules applicable in England, people are not permitted to travel other than for a legally permitted reason, such as where this is necessary for work, while hotels and other holiday accommodation providers are closed to leisure travel. Accordingly, employees who had holidays booked during the lockdown period will find that their trips are cancelled. In addition, even once the current lockdown restrictions are lifted, many countries may have local restrictions in place that visitors will be required to follow and we assume that the 10 day self-isolation quarantine requirement on return to the UK will continue to apply, with the result that some employees may still have their holidays cancelled, or wish to cancel them.

This may result in employees asking to cancel pre-booked periods of annual leave. Employers should be flexible in this regard, but should monitor the situation carefully. There are no statutory rules governing whether an employee can cancel the annual leave that they have booked off work and most holiday policies do not cover this. Therefore, so long as employers take a reasonable and consistent approach, they do not necessarily have to agree to an employee cancelling annual leave that they have booked if it would be helpful to the employer operationally for the employee to take the leave as planned, even if their trip has been cancelled or they no longer wish to travel.

If lots of employees cancel their annual leave because of Covid-19, employers may face high levels of demand for annual leave later in the holiday year, which they may not be able to accommodate. In those circumstances, employers may find that they need to refuse some holiday requests in order to meet staffing needs, which could be problematic, and of course employers need to be mindful of their obligation to enable all employees to take their annual leave. (Note this should be during the relevant holiday year, but (as discussed at question 5, above), regulations introduced on 27 March 2020 allow workers to carry forward up to four weeks’ annual leave into the next two leave years, if they have been unable to take it due to Covid-19.)

During the pandemic, some employers have been encouraging employees to take a pro-rata amount of annual leave by certain points in the holiday year rather than storing it up. Even though holiday travel to certain countries may not have been possible and this may have impacted the plans of some employees, there would still have been a benefit to them in having a period of relaxation away from work, especially as certain lockdown restrictions had eased over last summer and employees were able to enjoy leisure activities. In this regard, it is worth noting that the Government guidance on holiday entitlement and pay during coronavirus makes clear that employers can still require employees to take holiday on specified dates, notwithstanding the Covid-19 pandemic, by giving notice in accordance with the WTR. The required notice is double the number of days’ holiday you want the employee to take. (Note, this guidance also applies where employees are on furlough, although certain additional issues may need to be considered – see question 16 of the FAQs on the Extended CJRS for details.) 

Employers should also take note that the ACAS guidance on coronavirus and using holiday encourages employers and employees, as a matter of best practice, to be as flexible as they can about holiday during the coronavirus pandemic. In particular, the guidance recommends: talking about plans to use or cancel holiday as soon as possible; discussing the reasons why holiday might need to be taken or cancelled; listening to each other’s concerns and welcoming ideas for alternatives; considering everyone’s physical and mental wellbeing; and being aware that it’s a difficult time for both employers and staff. 

8. If an employee has to self-isolate during or shortly before a period of booked annual leave, can they reclassify the annual leave as sick leave? (Last updated 19/01/2021)

Employees are legally entitled to reclassify holiday/the balance of a holiday during which they become ill as sick leave, and are also entitled to do so where they become ill before a period of booked holiday so that their sick leave would coincide with their holiday. (This is based on case law which establishes that the purpose of annual leave (rest and relaxation) is different from and incompatible with the purpose of sick leave (recovery from illness).) This entitlement applies only to holiday that is part of the 4 weeks minimum annual leave under the Working Time Directive. However, it can be difficult to distinguish the Working Time Directive part of an employee’s holiday, and there can be other administrative difficulties, so employers often apply these and other principles relating to the interaction of holiday and sickness to all of an employee’s holiday entitlement.

Make UK members can access further information on employees’ entitlement to reclassify holiday as sickness absence here. These HRL Resources also consider what a company’s holiday and absence management policies may say about requests to reclassify holiday in this way, e.g. what evidence the company may require and whether any other conditions may be imposed.

While rates of Covid-19 transmission are high, employers may face large numbers of employees having to self-isolate – whether because they have tested positive/developed symptoms, or because they are in the same household / support bubble as someone who has, or because they have otherwise been identified as a close contact of someone who has tested positive. If such periods of self-isolation coincide with employees’ booked annual leave, many employees may ask to reclassify that leave as sick leave, particularly if the employer pays company sick pay.  You would then have to consider, as set out above, the legal position and what your company policies say to ensure that you respond appropriately. 

In the context of the pandemic, it is worth noting that there is a potential distinction to be drawn between employees who are actually ill with Covid-19 and those who are asymptomatic or who do not have Covid-19 themselves but are self-isolating as a household member or close contact of someone who does. 

Where the employee is actually unwell with Covid-19, they should have the same right to reclassify holiday as sickness as other ill employees would have. (And note that under the law relating to sickness and holiday there is no need for an employee to demonstrate that they are physically unable to take the holiday for the right to reclassify it as sick leave to apply; the key issue would seem to be whether they would have been fit to attend work in light of their sickness.) 

Under the applicable regulations, an employee who is subject to a self-isolation requirement where they are not actually unwell will, assuming they will be unable to work remotely from the place where they are self-isolating, be deemed to be entitled to SSP. However, it is less clear whether they would fall within the scope of the case law on reclassifying holiday as sickness absence. The purpose of a period of self-isolation where the employee is not actually unwell is to prevent the spread of Covid-19, rather than to allow the employee to recover from illness. However, the employee would argue that a requirement not to leave the place where they are self-isolating is equally incompatible with the rest and relaxation purpose of annual leave. This is a question that may need to be determined by employment tribunals going forwards. For now, however, if you are faced with such an issue, you may want to take advice on your particular circumstances. 

9. Can we continue with disciplinary and grievance processes during the Covid-19 crisis? (Last updated 07/12/2020)

Employers may be unsure whether they can progress a disciplinary or grievance process, e.g. by conducting investigations while home-working, and holding hearings remotely via Skype or Zoom, where key employees are working from home or are furloughed. Here, we consider the potential issues such action could raise. 

HR and line managers who are working from home should, we think, be able to conduct investigations into grievances or alleged misconduct remotely, provided they have access to relevant technology and materials. For example, if an investigating manager needed to review social media posts or emails they could presumably do this from home. On the other hand, inspecting the site of an alleged act of misconduct could not be done remotely. Employers will therefore need to consider whether a reasonably thorough investigation has been completed in each individual case and decide on that basis whether it would be appropriate to hold the disciplinary/grievance hearing, or suspend the process until further investigation is possible. 

Note that the ACAS guidance on disciplinary and grievance processes during coronavirus specifies that disciplinary and grievance procedures must always be fair and reasonable and, during the pandemic, must be carried out in a way that follows public health guidelines around social distancing and the closure or partial closure of certain workplaces. However, the guidance also emphasises that procedures should be taken forward without unreasonable delay. It flags the importance of considering the individual circumstances of each case, highlighting that matters such as gross misconduct allegations or grievances about unlawful harassment may need to be dealt with more urgently than minor disciplinary issues which it might be reasonable to postpone to a later date. The guidance suggests that employers discuss with everyone involved (including the employee, their companion, the manager chairing the hearing, any witnesses, etc.) whether to suspend or proceed with the process and recommends that any decision to suspend a process is kept under regular review. 

Where the employer decides that an investigation can be progressed or that a hearing can be held, there may be particular concerns around doing so remotely where an employee is accused of gross misconduct and the likely outcome of the disciplinary hearing would be dismissal. If the workplace is open, it may be possible to hold a hearing face-to-face. However, as flagged in the ACAS guidance, the employer would have to follow the applicable guidelines on working safely and carry out an appropriate risk assessment. It would also be important to ensure that the employee’s chosen companion is able to attend the meeting in person if the employee wishes. If a face-to-face meeting is not possible, the ACAS guidance acknowledges the possibility of holding a hearing remotely provided this can be done fairly.

In our view, holding a hearing remotely should not of itself make a dismissal unfair, provided that all other procedural steps are taken correctly, e.g. there was a thorough investigation, the employee has been given full details of the allegations against them and had time to consider those allegations, the employee is able to be accompanied during the hearing, etc. When seeking to schedule a remote hearing, however, the employer will need to be careful to check the availability of the employee's companion and ensure that all parties have access to the necessary technology to enable them to fully participate in the hearing, as well as any relevant materials. 

With regard to grievance proceedings, we doubt that holding a hearing remotely would, of itself, amount to a fundamental breach of the implied term of trust and confidence giving an aggrieved employee grounds to resign and claim constructive (unfair) dismissal. That said, assuming it has been possible to complete a proper grievance investigation and all that is left to do is hold the hearing, the most practical approach may be to discuss the situation with the aggrieved employee and ask whether they would prefer to have their grievance dealt with via a remote hearing, or face-to-face provided that appropriate safety measures can be put in place. 

The situation will be more complex if some/all of the employees that need to be involved in the process are on furlough leave (see question 19 of the FAQs on the Extended CJRS for details). 

Note also that an employee’s right of appeal continues to apply as normal. Employers must follow a fair appeals procedure taking into account the same considerations as for carrying out a disciplinary or grievance procedure during the pandemic.

10. We’re due to on-board some new employees next week. What should we do about carrying out right-to-work checks given that we may not be able to meet the employees in person? (Last updated 08/03/2021)

The usual right-to-work check process requires an employer to physically inspect an employee’s original right-to-work documents before the employee starts work. So under the normal rules it would be necessary for you to take a copy of the employee’s original right-to-work documents (e.g. passport), and sign and date the copy for your records. 

However, during the Covid-19 outbreak the enhanced stay at home guidance made it exceedingly difficult for employers to carry out a normal valid right-to-work check. Helpfully, on 30 March 2020 the Home Office released temporary right-to-work check guidance, to take into account Covid-19. This temporary guidance allows right-to-work checks to be completed over video call without the employer having the original documents. 

Employers whose workplaces are open may be able to conduct in-person right-to-work checks for new starters. However, under the lockdown rules applicable in England, everyone must work from home unless they cannot reasonably do so – and it is important to note that this instruction to work from home will remain in place even as lockdown restrictions are gradually eased over the coming months under the Government’s roadmap. Accordingly, some new starters may commence their role remotely at this time even if their workplace is open. It is therefore helpful that the temporary Home Office guidance remains in place so employers can continue to rely on it if they are taking on someone new who will begin as a remote worker.

If you are carrying out a right-to-work check for a new starter whom you cannot meet in person, it is important to read the Home Office's temporary guidance carefully to make sure that you follow the process precisely. The guidance also includes a requirement for employers to carry out a retrospective check of the original documents within eight weeks of the end of the temporary measures. The Home Office has stated that it will inform employers when the temporary measures come to an end. 

11. Will Covid-19 impact on a migrant employee’s application for indefinite leave to remain (ILR)? (Last updated 07/12/2020)

It is likely that Covid-19 will cause some disruption to a migrant employee's ILR application. This could include a prolonged absence from the UK, if the migrant temporarily returns to their country of origin, or the inability to complete parts of the ILR application due to social distancing measures. For example, as part of the ILR application, the migrant must sit a 'Life in the UK Test'. All test centres were closed during the initial lockdown and, consequently, many applications have been put on hold. Most test centres have now reopened, so applicants may be able to book their test.    

In addition, a migrant applying for ILR must provide evidence that they have not been absent from the UK for more than 180 days in a 12 month period. If a migrant has gone to their country of origin due to the Covid-19 crisis, they and their employer should provide evidence of any disruption and absence within the ILR application. The Home Office will take into account 'compelling reasons' as to why there has been an extended absence. With sufficient evidence (e.g. travel tickets showing the dates of travel) the migrant should be able to prove that their extended absence was due to Covid-19 related disruption.

In addition to express and implied obligations in employment contracts, employers should be mindful of the following duties:
 
  • To protect the health, safety and welfare at work of the workforce and others who might be affected such as customers, suppliers and visitors (under the Health and Safety at Work Act 1974 as amended and related legislation). There is also a common law obligation to take reasonable care of the health and safety of their workforce.
  • Not to discriminate against staff with protected characteristics, and to make reasonable adjustments for those with disabilities (under the Equality Act 2010). 

Employers should also be aware of their obligations under data protection law. Some of the issues that might arise when processing personal data relating to Covid-19 are discussed in the FAQs on ‘Data protection during the pandemic’