Q: What do employers need to know about the overseas travel rules?

Travel to and from England, Scotland and Wales

Current guidelines:

  • People who are fully vaccinated and those aged under-18 do not need to take a pre-departure test before travelling from countries outside the UK and the Common Travel Area.
  • On arrival, they will have to take a lateral flow test on day two after arrival but they will no longer have to self-isolate while awaiting the result. 
  • If the lateral flow is positive travellers need to take a further PCR test and follow normal isolation rules for positive cases.
  • Non-fully vaccinated travellers must take a pre-departure test, plus PCR tests on days two and eight after arrival and self-isolate at home for 10 days.
  • All passengers need to fill in a passenger locator form before travel.

Employers should keep up to date with the latest developments on the UK Government website.

The rules apply to people who have been outside the UK, Ireland, Isle of Man or Channel Islands in the 10 days before their arrival.

Travel to and from Northern Ireland

The guidelines for NI are essentially the same but are summarised below as there are some subtle differences, particularly relating to onward travel to the Republic of Ireland. 

  • Fully vaccinated people arriving in Northern Ireland no longer need to show proof of a pre-departure COVID-19 test.
  • Vaccinated travellers must complete a passenger locator form and take a lateral flow or PCR test on or before day two after arrival.
  • If the lateral flow test is positive, there must be a PCR test to confirm the result and the person must also self-isolate. If the PCR test is negative, the isolation period ends. 
  • Any travellers to Northern Ireland from a red list country (if any) in the past 10 days must self-isolate, along with anyone who lives with them.
  • Unvaccinated arrivals in Northern Ireland, must show proof of a negative pre-departure test in order to enter Northern Ireland and must self-isolate for 10 days after arrival.They must also complete a passenger locator form and complete PCR tests on day two and eight after arrival.
  • Those travelling within the Common Travel Area do not need to fill out a passenger locator form unless they have travelled outside it in the last 10 days. 
  • Those travelling from Northern Ireland to the Republic of Ireland are also exempt from post arrival testing. If they are transiting from abroad through Northern Ireland for the sole purpose of continuing directly to the Republic of Ireland then fully vaccinated travellers must complete a UK passenger locator form in the 48 hours before arrival in Northern Ireland. Those not fully vaccinated must take a pre-departure COVID-19 test in the two days before travel as well as the passenger locator form.

Further detail on the different rules for testing are available on the respective government websites: 


Q: What are the considerations for employees who travel overseas for work?

Employers sending employees on business trips should monitor the current UK travel guidance, the regulations and guidance applicable in destination and transit countries and ongoing FCDO travel advice.

The information below deals with the main practical aspects that employers need to consider before and after staff travel overseas for work.

It’s important to remember that international travel is still restricted, and subject to testing and potential quarantine depending on the destination. It’s also important to remember that there may be slightly different COVID-19 rules in England, Scotland, Wales and Northern Ireland.

There are currently no countries or territories on the red list for travel to England. However, if the red list is reinstated, travel to red list countries for work purposes is permitted if it is not reasonably possible to complete that work within the UK. 

Employers must remain well-informed of the latest travel restrictions, regulations, security, and medical issues and communicate the latest position to protect their workforce fully. This can be done by subscribing to travel advice email alerts for the relevant destination, and transit countries. Employers must update their travel policies, risk assessments and plan carefully for each trip including consideration of COVID vaccination status. Plans need to be flexible and adaptable including mental health support for staff who are overseas or have returned to quarantine as a result of business travel.

Travellers should ensure their insurance has the appropriate level of cover, as standard travel insurance policies will not cover countries where the UK Government do not advise non-essential trips. Specialised insurance may be available.

If employees are travelling for business employers should check what proof of vaccination the destination will accept. In some places a proof of a negative COVID-19 test may be required. Entry requirements for the country to be visited can be obtained by following links on the Government’s website.

Exemptions
Some people don’t have to comply with all of the COVID travel requirements, because of the jobs they do. Government guidance lists an extensive range of jobs which explains which restrictions apply and which do not apply for each job.
 

Q: Can employers insist employees work from home following their return from abroad even if the country they were in wasn’t suffering from high rates of COVID-19?

Many employers should be able insist employees work from home for a short period following their return from abroad even if the country did not have particularly high rates of COVID-19 at the time of their visit. 

The best approach is to agree in advance with employees when they will return to the office following their return from abroad, linking this to the current rules on testing applicable on return to the UK.  

The precise situation will depend upon the individual facts and contractual arrangements; for example, has the employee taken a COVID-19 test after their return? Will the employee be paid in full or would they for example lose commission by working from home? If employees lose out financially by working from home, then it may be a breach of contract for the employer to insist on this unnecessarily. 

Both employer and employee need to be sensible about the employee’s vaccination and test status and which country they have been to. Some countries may restrict travel, change risk status or bring in new rules with little warning, for example due to a new COVID-19 variant.

Employers should try and agree a plan with the employee before they go on holiday or to work abroad. The employer will need to ensure the employee does return as planned and is working from home and does not, for example, take the opportunity for a longer holiday.

Employers should check the current requirements with regards to the travel testing system. Generally, fully vaccinated travellers may need to test but not isolate on their return, whereas unvaccinated travellers may need to isolate. These requirements are under constant review so employers should keep up to date with the latest information on the government website.


Q: How should we handle pay or salary for employees who have to quarantine or isolate following a return from holiday?

If the employee can work from home (or in a quarantine hotel if that system is applicable) then they may expect to be paid as normal. However, the employer may not be obliged to pay if the employee cannot undertake their normal work or be allocated a special project.

Business travel
If the employer has sent the employee on a business trip and they must self-isolate on their return it would be advisable to pay them in full during the applicable isolation period. Penalising an employee financially following a return from business travel could be a breach of the implied term of mutual trust and confidence and could lead to a constructive unfair dismissal claim.

Paid leave
As employers have health and safety obligations to other staff they may decide following a risk assessment that protecting others in the workplace means they should simply keep paying the employee for remaining at home (or being in a quarantine hotel) even if they cannot work. This would effectively amount to granting additional paid time off work in addition to normal holiday leave or could mean using up the employee's annual leave  (see Q: Can we insist employees take any quarantine period as annual leave? below). This solution may be most appropriate if the quarantine was imposed suddenly.

Unpaid leave
Employers could agree with employees that any quarantine period be taken as a period of unpaid leave if home working is not an option.

SSP 
If the employee tests positive at their end of holiday, then SSP should be available. In other cases where the employee has a negative test and no symptoms, treating a post-holiday self-isolation or quarantine period as sick leave is not a viable option. Post-travel self-isolation or quarantine is not a ground for claiming SSP. Most company sick pay schemes are also unlikely to cover this either but an employer can choose to pay sick pay at the same rate as SSP or higher.

If the employee begins to show symptoms at any point including any isolation period then the usual rules and processes around sick leave and SSP apply (more information on coronavirus statutory sick pay can be found in the FAQs on managing employees who are self-isolating or who have symptoms below).


Q: What do employers do if an employee goes on holiday to a country and a quarantine is imposed suddenly for those returning from that destination?

Employees taking foreign holidays may find self-isolation or quarantine is suddenly imposed for people returning from that destination, and employers will need to be flexible and assist employees with following the requirements upon their return. Employees also need to be responsible and flexible; disputes may arise if some notice is given that restrictions are imminent and the employee could perhaps have avoided the restrictions by returning home promptly.

Some people may have to unexpectedly quarantine on return from holiday. Employers and employees can be completely unprepared for such decisions. The priority for employers and employees is to co-operate with the requirement to stay at home to stop the spread of the virus. Employers can advise employees to build in some contingency planning so that, for example, they return home a few days before they are due back at work. This at least gives employers time to plan replacement cover if needed but of course employers cannot dictate how employees structure their holiday time. 

The basic options for quarantined or self-isolating employees are:

  • Working from home if possible
  • Paid leave
  • Unpaid leave
  • Using annual leave

For further details on these options see the FAQ on handling self-isolation or quarantine periods (above).

Employees cannot claim SSP if they need to isolate just because of travel. SSP may be payable if they have symptoms or are contacted by the track and trace service. 


Q: Can we insist employees take any self-isolation period following return from a holiday as annual leave?

Employers can ask unvaccinated employees or those who have visited any countries included on a red list (if any) to take any isolation period as annual leave but there are some legal risks to this approach.

Alternatives may include agreeing to a period of unpaid leave or trying to counsel against travel to a high risk country if this will affect the employees' ability to work on return home. Of course, the employer should be more sympathetic if the country’s status changed whilst the employee was away or if the employee has personal reasons for needing to visit that destination. Employers should also be sympathetic if the employee has medical reasons for not being vaccinated and having more extensive isolation restrictions imposed, as otherwise a disability discrimination claim may ensue. 

Previous Government advice lists using up annual leave as an option for any quarantine period which does give employers some justification in enforcing such a rule. However, this approach is not without difficulty under current employment law:

  • To insist any quarantine is taken as annual leave employers can introduce a temporary policy across the workforce that anyone who travels overseas to a country subject to quarantine must take the time as further annual or unpaid leave. 
  • The unilateral change in terms and conditions would amount to a breach of contract so employees could theoretically leave and claim constructive unfair dismissal. Ideally, they should agree to the change.
  • In addition to the potential unfair dismissal risk for those who disagree, there is also a potential risk of discrimination claims. As unvaccinated travellers are most likely to be affected as their restrictions are more onerous, those with medical reasons for not being vaccinated may have a potential claim. In addition, those of certain nationalities who wish to visit relatives will be disproportionately affected, although the employer may be able to justify this. Many employees may accept the change rather than resigning in response and bringing a claim. However, there is at least a risk some will threaten proceedings.
If employees insist on travelling to a high risk country (for example, if any countries are on the red list) and refuse to use more annual leave during the quarantine period, then employers can try and insist the employee’s extra absence is classed as holiday. This does entail a risk of tribunal claims depending upon the contractual terms and the full reason for travel. Employers may decide to take the risk of insisting holiday is used without agreement but this should be extra if people have travelled abroad specifically to say goodbye to a close family member who is seriously ill or to celebrate a religious festival because of the risk of discrimination claims.

Q: Can employers deny holiday to employees where it is known that they will have to self isolate on their return?

The best way to deal with proposed personal travel is for employees and employers to openly discuss travel plans and follow the latest Government guidance, including any requirement for a self isolation period upon return to the UK. However, under normal working time rules employers can cancel any annual leave that has already been authorised, so long as the minimum notice is provided. 

Cancelling employee's holiday

Employers can revoke pre-authorised leave by giving a period as long as the amount of leave the employee has requested (unless agreed otherwise). For example, employers need to give two weeks’ notice to cancel two week’s holiday (if the employer requires the employee to take leave, the notice period is longer and must be at least twice as long as the period of leave to be taken). An employer should not cancel a period of annual leave if it means that the employee is not able to take their full statutory annual leave entitlement in that leave year.

If an employer cancels a period of leave and the employee cannot go on a booked holiday and suffers financial loss, the employee may say that the cancellation is a breach of the implied duty of mutual trust and confidence entitling them to leave and claim constructive unfair dismissal. Cancelling a booked period of annual leave should only be contemplated to meet business needs  and the employee could be offered compensation for any inconvenience and loss. Cancelling pre-booked holiday at short notice will have serious employer/employee relationship implications which is why agreement is preferable.

Employers can discourage employees from travelling abroad especially to red destinations by pointing out that if they need to self-isolate or quarantine on their return, they will not be paid.

If the employee has already booked a holiday, perhaps based on leave which was approved before the current country categorisation and travel restrictions were known, then the employer is causing financial loss to the employee. The safest course of action is to allow the employee to take their holiday but try and find work they can do at home upon return during the quarantine period, even if this is a special project.

Employers imposing future temporary travel restrictions

Employers could impose a temporary policy advising employees in advance not to travel to countries on the red list, especially given the emergence of variants of concern. However, enforcing this by dictating what an employee can do with their leisure time will not be a lawful and reasonable instruction from an employer in all situations. The employer can argue that they have a duty to take care of other staff which justifies the restriction. However, the employee may be going to a relatively safe region within the country, or the country may not have been on a high-risk list when it was booked.

Employers who ban future private travel, even temporarily, may disproportionately affect certain groups and this could be indirect race or disability discrimination. However, employers may decide that their duty to protect other staff is worth taking the risk of a potential discrimination claim. Employers can defend indirect (but not direct) discrimination claims using the ‘proportionate means of achieving a legitimate aim’ defence. The fairness of a travel ban for employees depends on the length, destination, the level of risk, the employee’s reason for wishing to travel, when the quarantine for that country was imposed and the overall situation at the time. An absolute ban may not be reasonable if the only downside is the employee having to self-isolate after returning.

If employers target certain staff specifically and request them not to travel or come to work this could lead to direct race discrimination claims. If unvaccinated staff are targeted, then disability discrimination claims may arise. Any request to avoid travel and not attend work should apply to all staff regardless of nationality or ethnicity and be linked to potential exposure to the virus not racial origins.


Q: How can I make sure that employees take leave that is due to them even though they are reluctant to take holiday during the pandemic?

Employers can encourage employees to take leave due to them in several ways.

The first step is to discuss the reasons why the employer wants the employee to take holiday; it may be because the employer is anticipating a busier period later on and wishes leave to be taken before then. Alternatively, the employer may wish to ensure the employee benefits from rest and relaxation by taking as much of their leave as possible. The rules about annual leave are based on health and safety, so that workers can have a break from working.

Ultimately, employers can force workers to take leave but it may damage employee relations if employers are too insistent. A common method of encouraging leave to be taken is a company-wide communication that asks all employees to take a certain percentage of their leave by a certain date.

Under the Working Time Regulations, employers can require employees to take leave on fixed dates, providing the employer provides twice as much notice as the period of leave to be taken. 


Q: We have some employees who are due a lot of TOIL/overtime but are finding it hard to take this time. How would you suggest we manage this?

Employees who are due a lot of TOIL/overtime or normal annual leave may be finding it hard to take this time, so leave is accruing. This is obviously of growing concern for employers who have a duty of care towards employees, especially if they are suffering from stress or potential burnout. The problem is that staff may choose not to take time out away from work if they are still restricted and are unable to travel or visit family. Others may be unable to book holiday due to the need to continue to work to meet increased demand or provide essential services.

Employers can consider the following:

  • Introducing a policy on reasonable notice that asks all employees to take a certain percentage of their leave (say 50%) by a certain date. Remember the rules on carry over (summarised below).
  • Managers and business owners can lead by example by taking time off.
  • Encouraging employees to take leave proportionately through the leave year, even during any period of restriction or even lockdown, as the purpose of annual leave is a non-working period of rest and relaxation not solely to travel. 
  • Encouraging employees to take daily regular breaks away from their desk and the inbox, as well as holiday time offline, even if this is time at home, for their wellbeing and health.
  • Ultimately employers can compel employees to take holiday by giving notice of a requirement to take annual holiday which is twice the length of the holiday proposed.

Forcing employees to take TOIL accrued due to overtime or to take their annual holiday entitlement is obviously more contentious than encouraging them to take leave by focusing on the benefits. The law allows employers to force time off to be taken, although this normally applies to annual leave portion and not TOIL. There is a risk that forcing leave at a time when employees can’t travel or visit family could be a breach of the implied term of trust and confidence, or discrimination, giving rise to claims including constructive unfair dismissal or perhaps race discrimination if those with overseas relatives are prevented from visiting them. Dictating the timing of time off also impairs goodwill and staff relations.

Employees can carry four weeks' leave over for up to two leave years following coronavirus legislation in March 2020. This overrides the normal rules which prohibit roll over of the working time annual leave from year to year. Employers and employees can agree similar arrangements relating to TOIL. In most cases, people who carried forward their leave will have taken it in the following leave year. If they have not the leave must be taken within the two leave years immediately following the year in which the leave was due. For example holiday due in the summer of 2020 with a company leave year of 1 January to 31 December 2020 should be taken before 31 December 2022.  


DISCLAIMER: The materials provided here are for general information purposes and do not constitute legal or other professional advice. While the information is considered to be true and correct at the date of publication, changes in circumstances may impact the accuracy and validity of the information. The CIPD is not responsible for any errors or omissions, or for any action or decision taken as a result of using the guidance. You should consult the government website for the very latest information or contact a professional adviser for legal or other advice where appropriate.


If you have other queries about COVID-19 not covered above, please contact the CIPD member employment law helpline on 03330 431 217 or visit the Community pages

We know that our members and customers are facing challenging times and we are here to help you. Due to a high number of calls we apologise that your wait time may be longer than usual. We appreciate your patience and will connect you to an expert adviser as soon as we can.

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