Q: What do employers need to know about the overseas travel rules replacing the traffic light system from October 2021?

The rules about overseas travel to and from England are changing significantly. Business and leisure travel will involve less testing and simpler rules surrounding testing and quarantine upon return. The changes summarised below apply to England only; different guidance in Scotland, Wales and Northern Ireland is summarised below.

The changes in England are as follows:

From 22 September 2021, eight destinations are removed from the red list namely Turkey, Pakistan, Maldives, Egypt, Sri Lanka, Oman, Bangladesh and Kenya.

From 4 October 2021, the previous traffic light system of red, amber and green countries is replaced with a switch to a two-tiered system. The key features of the new system are that:

  • There will be one red list of countries that travellers are advised to avoid visiting and which would require quarantine on return. Any non-red country is effectively green and clear for travel.
  • There will no longer be an amber list. This means many more countries are effectively added to the green list.
  • Fully vaccinated passengers do not need to take pre-departure tests for travelling into England unless arriving from countries on the red list.
  • Tests after returning to England on day two (and in some cases day eight) after return still apply. The early release scheme of applying for another PCR test on day five of quarantine still applies as well.
  • Those returning from red list countries still must spend 11 days in a government-approved quarantine hotel.
  • Fully vaccinated travellers from a number of countries (including for example Canada, Australia, Israel, New Zealand, Japan and Singapore) will no longer be required to self-isolate or take an eight-day PCR test (in the same way was fully vaccinated people from the UK, the EU, and the United States).
  • All passengers will still need to fill in a passenger locator form before travel.

From the end of October 2021 further changes apply:

  • Vaccinated travellers returning from certain non-red countries must still test on day-two after they return to the UK but can rely on a cheaper lateral flow test instead of a PCR test.
  • Unvaccinated travellers who have not had both doses of a coronavirus vaccine must quarantine for 10 days at home upon their arrival from a green list country and take a lateral flow test before they depart and a PCR test on day two and eight when they return.
  • This means unvaccinated or partially vaccinated people who have not had both doses of a coronavirus vaccine will still have to pay for PCR tests.
  • Anyone testing positive will need to isolate and take a free confirmatory PCR test which would be tested and sequenced to help identify new variants.

The end of October changes means that when some people return from half-term breaks there will be reduced testing requirements on their return.

Scotland

Scotland has agreed to taking the same countries off the red list destinations but travellers will still need to provide a negative test prior to departure and take a PCR test (rather than a lateral flow test) on day two after arriving in Scotland.

Wales

Wales is also mirroring the changes to the red list destinations and is carefully considering the remaining changes.

Northern Ireland

The traffic categorisations of green and amber will no longer be used, with countries being listed as either red, or non-red the same as in England. The removal of eight countries from the red list also applies.

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.


Q: What do employers need to know about the current traffic light system and quarantine requirements for employees who travel overseas?

Please note, the traffic light system is due to change from early October 2021. The following information is based on the current system.

It’s important to remember that non-essential international travel for holidays is still restricted, and subject to testing and potential quarantine depending on the destination. There are slightly different COVID-19 rules in England, Scotland, Wales and Northern Ireland.

Passenger locator forms mean that all those returning to or arriving in the UK will have to fill in their travel details, a UK address, passport details and COVID test booking reference numbers. The testing rules for returning are summarised below. There will also need to be a quarantine hotel booking (if travelling from a red list country).

Traffic light system
The restarting of foreign holidays and other overseas travel is based on rating countries either green, amber or red under the traffic light system. There are different restrictions in each of the three categories with different rules regarding quarantine for returning travellers for each list. Those who test positive will be required to self-isolate for 10 days at home. Vaccinated travellers are not exempt from taking any tests because of the risks of new variants but vaccinated travellers should not have to quarantine if returning from countries on the amber list.

Business travel and holidays
It is important to distinguish the differences between the rules for business and leisure travel under the traffic light system. It is clear that people should not travel to red list countries for holidays and most of the government guidance relates to leisure travel.

Both before and after the traffic light system, it appears that travel for work purposes is permitted provided that it is not reasonably possible to complete that work within the UK. This includes certain essential work, for example those working on critical national infrastructure including the national rail network, those who regularly work abroad and those working in national security or diplomatic purposes. Many examples of essential business travel have been allowed at various stages of the pandemic. The position with respect to for business trips  to ‘red list’ countries is not entirely clear but it should be avoided and minimised. Business travel to green and amber countries is permissible as long as the testing and quarantine requirements are complied with.

Employers must remain well informed of the latest travel restrictions, regulations, security, and medical issues and communicate the latest position in order to protect their workforce fully. 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.

Categories

The categories and restrictions are as follows.

Green countries
People from green countries do not need to quarantine on their return, unless they receive a positive test. People arriving in the UK from green list countries will need to take both of the following steps:

  1. Take a lateral flow, PCR or LAMP test before their departure from that country. This must meet UK Government standards. 
  2. Book a second test for on or before the second day after arriving in the UK. This can be a PCR test or a lateral flow test. These tests must be booked and paid for before travelling.  The booking must be from the Government's approved list of private test providers and can be self-swab at home or test at a site, depending on the provider chosen.
The green list of countries was limited to a few countries but this is increasing. The countries at risk of moving from green to amber will be added to a ‘Green Watchlist’. Booking holidays to these countries means there is a risk of quarantine if the status changes during the time abroad.
 

Amber countries
The majority of countries are on this list include popular UK holiday destinations such as Spain, Italy and Greece. However, government advice differs for amber list countries depending on whether the travellers have been fully vaccinated or not. Unvaccinated people arriving from amber list countries may have to quarantine at home for 10 days when they return. 

From 2 August people fully vaccinated in the UK, Europe and the US do not need to isolate. The extension to those vaccinated in the US and Europe includes countries with different relationships with the EU including Norway, Iceland, Switzerland, Liechtenstein, Andorra, Monaco and Vatican City.

People arriving from amber countries will also have to take both of the following steps:

  1. Take a test, which can be lateral flow or PCR test before their departure.
  2. Fully vaccinated people must book and take a COVID-19 PCR test on or before day 2 after arrival. Those fully vaccinated or those on COVID-19 vaccine clinical trials do not need to quarantine, neither do those under the age of 18 and resident in the UK.
  3. Those not fully vaccinated must book and take a PCR test on days two and eight during the 10-day quarantine at home or in the place they are staying.
People can end self-isolation early by purchasing an extra PCR test on day five which means they can leave quarantine if it is negative. This is known as test to release. As with green countries, tests must be booked and paid for before travelling from a list of government-approved providers.
 
For both green and amber countries children aged 4 and under do not need to take the day 2 or day 8 test. Travellers on the green list or vaccinated travellers on the amber list only need to quarantine if the test result is positive or NHS Test and Trace notifies them that they travelled to England with someone who has tested positive or otherwise encountered someone who has tested positive for COVID-19. Travellers from amber countries who are unvaccinated may be able to end quarantine early if they use the Test to Release scheme. If they do not opt into the Test to Release scheme, full 10-day quarantine applies.

Red countries
People should not go on holiday to the countries on the red list. People arriving from red list countries will have to quarantine for 10 days in a specific quarantine hotel. They will have to take both of the following steps:
  1. Take a test, which can be lateral flow or PCR test before their departure.
  2. Take a PCR test on days two and eight during the 10-day quarantine in the hotel.
In addition to booking and paying for a test before travelling, from a list of government-approved providers, travellers must reserve and pay for the complete quarantine package before departing for the UK.

Employees will need to check advice, incidence rate and the healthcare provision for all the countries they visit or transit through. This can be done by subscribing to travel advice email alerts for the relevant destination, and transit countries. 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. The current safe air travel guidance should also be followed which may involve wearing a face covering on flights.
 
Holidays in EU destinations
By the start of June UK holidaymakers who have been fully vaccinated with a final dose of an authorised vaccine at least 14 days before arrival were allowed in to more EU countries. Employers will see UK employees now hoping to or taking a European holiday later in the year and should plan for handling these employees upon their return to work bearing in mind they should have been tested as part of the return procedure. 
 
The EU Digital COVID Certificate is recognised by the UK from 2 August onwards. It applies in all 27 member nations so EU citizens (and those of Switzerland, Iceland, Norway and Liechtenstein) can download it or obtain a paper copy for free. As the UK is no longer in the EU, the certificate is not available to most UK citizens unless they have EU citizenship too.

Anyone with the certificate should be able to travel across borders within the EU without testing or quarantine.

Non-EU nationals, including UK passport holders who are living legally in EU member states with a right to travel to other member states, may be able to get the certificate. The certificate applies to people who have been vaccinated against COVID-19, recently had a negative PCR test or recently recovered from COVID-19. The certificate contains a QR code unique to the hospital or test centre where an individual's vaccine information is stored.

The NHS COVID Pass is a similar vaccine passport but it cannot be used in all it EU countries but some places including Greece and Spain, do accept it.

The system and countries falling into each category in the traffic light system is likely to change and employers should keep up to date with the changes. Further information on employers’ options are contained in the Q: How should we handle any quarantine period for employees who have been travelling to certain destinations? Can we insist they take the 10 days as annual leave?

Q: Can employees now travel to all international countries for work and leisure purposes, and what are the exemptions from the international travel testing and quarantine rules?

International travel has resumed and some leisure travel is permitted, however this remains subject to stringent testing requirements. The traffic light system categorises countries based on their COVID risk, and all travellers will still have to take tests before and after returning to the UK.

Work travel

The easiest solution where possible remains to minimise international travel in the short term. However, employers and employees who plan travel for later in the year should bear in mind that we do not know exactly how rules will evolve and which countries will remain in which category. The rules in Scotland, Wales and Northern Ireland may differ slightly so employers should check the relevant websites for more information.

The restrictions on travel to and from the UK do not apply to those travelling from Ireland, the Channel Islands or the Isle of Man.

Travellers to and from the UK

Employees may go on holiday to countries in the green and amber list of countries where travellers have to take tests but do not have to quarantine on return to the UK unless they are unvaccinated in which case quarantine is still required when arriving from an amber country.

UK nationals or residents and other people can travel to the UK from amber list countries for any reason and do not have prove that their trip is essential.

The government rules state that UK residents must not travel to red list countries and if they arrive from those places strict quarantine requirements apply.

Work related travel is now permitted both to and from green and amber list countries.

Essential work-related travel may be permitted to red countries and there is an extensive list of travel exemptions for specified types of work in those places (see below). Those who have a work or other essential reason to visit or travel through a red list country have stringent testing requirements plus a 10 day quarantine at a government approved hotel for those permitted to return to England following a visit to a country on the red list. They must take a COVID-19 test on day 2 and day 8. Work travellers claiming the travel exemption will need to show an employer’s letter including name and address for the employer and employee and contact details and the work to be undertaken.

For further information on the testing requirements also see Q: What do employers need to know about the traffic light system for employees who travel overseas? (above).

Points to consider

During the pandemic employers should have a very strong reason for any business travel, but especially for travel to a country that is on the red list. Employers should always consider:

  • whether their business travel insurance policy would cover any proposed trips
  • the impact of the 10-day quarantine period when applicable, for any staff coming back into the UK (see Q: How should we handle any quarantine period for employees who have been travelling to certain destinations? below)
  • any restrictions in the countries to which the employees will be visiting.

The quarantine rules are reviewed regularly so employers should regularly check for up to date government advice

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.

For example, the requirement to provide contact details and address data may not apply to diplomats and consular officials, defence personnel and certain contractors or officials working on essential border security. Special rules apply to those who regularly work abroad who travel to and from another country for work at least once a week are also exempt.

There is a long list of other exceptions for certain occupations including seasonal agricultural workers, BBC broadcasting network and services staff, certain health or care professionals, certain oil and gas workers, road hauliers, nuclear personnel, specialist aerospace engineers, people engaged in urgent or essential work on electronic communications networks. Other occupations include nurses from red list countries coming to take up NHS employment. A full list of the exceptions can be accessed on the government website.

In addition people do not need to take a test if their  journey to England began from Ireland, Northern Ireland, Scotland, Wales, the Isle of Man, Jersey, Guernsey, Falkland Islands, St Helena or Ascension.

People do not need to take a test if travelling to the UK for urgent medical treatment or are accompanying someone who is travelling for urgent medical treatment, and it is not reasonably practical to obtain a negative COVID-19 test in the 3 days before departure. They must present a note from a medical practitioner at check in and to Border Force staff on arrival in England.


Q: Can employers insist employees work from home following their return from abroad even if the country they were in wasn’t on the red list?

Many employers can insist that employees who can work from home should do so. The best approach is to agree in advance with employees when they will return to the office following their return from abroad.

The precise situation will depend upon the individual facts and contractual arrangements; for example will the employee be paid in full or would they for example lose commission by working from home? If employees lose financially by working from home, then it may be a breach of contract for the employer to insist on this unnecessarily. Other relevant factors include 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 remember the following with regards to the traffic light system.

Green countries
Employees returning from green countries do not need to quarantine on their return if both of their tests are negative. Therefore, employers should be able to allow employees to return to work after the negative tests. If the employer wishes to be extremely cautious then the employee could agree work from home for 10 days if they have work that can easily be done from home (although this seems unnecessary given the test results). Obviously if the employee had a positive test normal quarantine arrangement would apply.

Amber countries
Employees returning from amber list countries will depend on whether they were vaccinated or not. From 19 July, arrivals who have been fully vaccinated with an NHS administered vaccine in the UK at least 14 days ago (or are on a formally approved UK vaccine clinical trial) do not need to quarantine unless they have symptoms or test positive. They still must comply with pre-departure testing and day 2 testing measures.

Those who are unvaccinated should work from home upon their return from an amber list country or if their vaccination course is incomplete. They have to quarantine at home for 10 days when they return. These employees will have taken lateral flow or PCR tests before their journey home and a will take PCR test on days two and eight during the 10-day quarantine at home. The employer can ask the employee to end self-isolation early by purchasing an extra PCR test on day five- known as test to release. This would mean the employee could return to the workplace if the test is negative. However, given the costs of purchasing the tests and the time involved, working from home for 10 days may be the most straightforward solution. Alternatively, the employer may offer to pay for the extra early release test. 

Red countries
Employees arriving from red list countries must quarantine for 10 days in a specific quarantine hotel which will cost £1,750. They will take lateral flow or PCR tests before their departure and PCR tests on days two and eight during the 10-day hotel quarantine. Employers may ask the employee to work during their time in the hotel if possible.

For details of the differing quarantine requirements under the traffic light system please see Q: What do employers need to know about the traffic light system for employees who travel overseas? (above).  

For further information on employees who cannot work from home and pay during any quarantine or isolation period see the Q: How should we handle pay for any employees who have to quarantine or isolate following a return from holiday? And Q: How should we handle any quarantine period for employees who have been travelling to certain destinations? Can we insist they take the 10 days as annual leave? (below).


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 their quarantine hotel 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 10 day 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 employee take the 10 days quarantine period as annual leave? below). Additional paid leave may be appropriate if home working is not an option and if the employer can afford to do this. 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 during quarantine
Any individual self-isolating because they or someone in their household has COVID-19 symptoms can claim SSP. Additionally those on isolation under the test and trace scheme can claim SSP, but a post-holiday quarantine period is different. If an employee chooses to go on holiday, they have taken the risk and presumably knew of the requirement to quarantine upon return. The existing rules only enable claims for SSP if it is ‘known or reasonably suspected that the individual has been in contact with a case of, a relevant infection or contamination’. Returning from travelling does not necessarily lead to a reasonable suspicion of contact with someone infected with coronavirus. For example, if someone on the plane has tested positive then there may be a reasonable suspicion someone is infected.

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 quarantine period as sick leave is not a viable option. Post travel 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 10-day quarantine 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).

Other options may include attempting to impose limits on employees’ ability to travel abroad in the first place, requiring the employee to take annual leave, or placing employees on furlough (although this is not really the purpose of the scheme). Limiting holiday destinations is now difficult as the government have opened up travel to green and amber countries.  For further information on these options see the Q: Can we insist employee take the 10 days quarantine period following return from a holiday as annual leave? and Q: How should we handle any quarantine period for employees who have been travelling to certain destinations?


Q: Can we insist employee take the 10 days quarantine period following return from a holiday as annual leave?

Under the traffic light system (applicable from 17 May) employees will have to either test or quarantine at home or in an hotel for 10 days following their arrival in England depending on whether they have been in a red, amber or green country (different rules will apply in Scotland, Wales and Northern Ireland). Employers can ask employees to take any such 10 day quarantine period after visiting a red list country as annual leave but there are some legal risks to this approach.

Alternatives may include agreeing to a period of unpaid leave or imposing travel restrictions if the 10-day quarantine period is from a known red list country and will affect the employees' ability to work on return home. Of course the employer should be more sympathetic if the country’s status changed from amber to red whilst the employee was away (see our separate Q: How should we handle pay or salary for employees who have to quarantine or isolate following a return from holiday? and Q: Can employers deny holiday to employees where it is known that they will have to quarantine on their return? and 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?)

Previous government advice lists using up annual leave as an option for the 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 the 10-day 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 this 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 a discrimination claim because 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 and refuse to use more annual leave during the quarantine period, then employers can try and insist the employee’s extra 10-day 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.

Normally employers can specify when employees take leave if they give the appropriate notice but being quarantined at home or in a hotel is not the purpose of annual leave.

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?

Foreign travel is no longer off limits, as government ministers have eased restrictions in England. Most countries are now on the amber list and in England the government no longer advises against travel to these countries. Scotland and Wales continue to advise against non-essential overseas travel and Northern Ireland advises people to avoid travelling as much as possible.

Adults who have been fully vaccinated in the UK do not have to self-isolate for 10 days upon return from an amber country. People coming from amber countries still need to pay for a COVID test 3 days before returning, and a PCR test 2 days after arriving. Unvaccinated people will need to quarantine too.

The ability to allow vaccinated individuals to travel more freely internationally is changing and the World Health Organisation has been attempting to adopt an international system for passengers and the travel industry, but this will keep changing as the virus mutates. The devolved administrations in Northern Ireland, Scotland and Wales have their own respective rules and regulations on travel which have broad similarities but do need to be checked. The lists are reviewed every three weeks and, if conditions deteriorate, countries can move between lists with short notice.  

Any medium to long term schemes will continue to involve vaccination, testing and isolation but is dependent on the evidence on transmission and efficacy against new variants.

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

Some people will have to unexpectedly quarantine for 10 days on return from holiday. Employers and employees can be completely unprepared for such decisions. In the future more countries will similarly be removed from any travel safe list at short notice (as has happened with other countries' removal of the UK for example) - risking quarantine for travellers on their return. 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 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 quarantine periods (above).

Employees faced with a sudden quarantine period cannot claim SSP if they need to quarantine just because of the trip. SSP may be payable if they have symptoms or are contacted by the track and trace service.


Q: How should we handle any quarantine period for employees who have been travelling to certain destinations?

Employers should consider setting out their expectations regarding quarantine periods  in a holiday or coronavirus policy. This ensures that staff understand what might happen if they return from holiday abroad and have to self-isolate afterwards. Things to consider include notifying the employer whether they are planning to travel or have travelled to a red, amber or green destination, reporting their absence, how absences will be recorded and whether they will be paid during quarantine and, if not, whether they can take paid holiday.

As more employees will be  resuming travel abroad for work or personal purposes employers need to be familiar with the changes to the traffic light system as summarised in our Q: What do employers need to know about the traffic light system for employees who travel overseas? (above).  

Employers should remember that decisions to impose a quarantine on travellers may be very sudden. A destination may be on the safer amber list of countries but then the status changes rapidly to red leaving employers and employees with no time to plan ahead.

Employers must have open discussions with employees about holiday plans to countries where quarantine is required upon return and proposals for that quarantine period upon their return. This applies whether the quarantine was known in advance or imposed suddenly. Employers need to plan for the impact of any potential 10-day quarantine periods on employee’s work and the wider team.

Employers should:

Minimise business related travel 

Avoiding business related travel where possible applies even when the rules change. The red list countries should be avoided unless employers are prepared for employees to have extended absences to follow the hotel isolation rules on their return. Travel should still be limited to essential travel and should be to countries that permit visits from the UK. Some employers or work may be permitted or fall into an exempt category.

Discuss the quarantine requirements with the employee before he/she goes away 

Advance discussions will ensure everyone understands the rules that apply in the country they are visiting and the rules that apply on their return. Employers should agree how the employee's return will be managed. Employers should be aware of any last-minute changes to quarantine rules and reassure employees that an agreed plan can be implemented.

Options

There are various options for employees who do visit countries overseas. Potential options include:

Working from home: The easiest option where possible is to allow the employee to work from home or in the quarantine hotel on their return for 10 days.

Unpaid, paid leave or SSP: If the employee cannot work from home, then then unpaid or paid leave may be an option although ideally the employee should agree. For further details of the position with respect to pay during the 10-day period and information on claiming SSP in limited circumstances see Q: How should we handle pay or salary for employees who have to quarantine or isolate following a return from holiday?

Discouraging employees going to certain destinations: Employers can try and discourage employees from travelling to red list destinations (or perhaps amber list if they are unvaccinated) by emphasising that when they have to self-isolate/ quarantine on their return, they will not be paid. (See Q: Can employers deny holiday to employees where it is known that they will have to quarantine on their return? for further details.)

Furlough: Another option until the end of September 2021 may be to furlough the employee for the time they're self-isolating if both the employer and employee agree. The furlough scheme ends at the end of September 2021 with employers paying 20% towards the hours their furloughed staff do not work in August and September 2021.

Dismissal: Under previous government advice a potential further option was listed as dismissal, although this is then discounted as the advice says this should be a last resort and that employers should consider alternative arrangements first. These alternatives include those listed above, such as agreeing with employees to take annual leave or unpaid leave. Although the government advice listed dismissal as an option, it is extremely high risk option. Dismissing an employee because they travelled to a country where they have to isolate for 10 days afterwards is likely to give rise to a claim for unfair dismissal, especially if the government changed the rules when they were abroad.

A 10 day absence from the workplace may not count as the statutory ‘fair’ reasons for dismissal of misconduct and even if it did, dismissal would not be within a band of reasonable responses. However disciplinary action would at least be justified.

Dismissal of an otherwise exemplary employee because they travelled to a country out which was placed on a red or amber list  is likely to be unfair and may be discriminatory depending on the exact circumstances, the employee’s period of continuous service and their reasons for travel. Where possible, employers should explore the option for the employee to work from home or to agree a special project that can be completed from home.

Role of testing
Employees who have been to green or amber list countries should be able to return to work as long as they have a negative PCR tests following their return. Unvaccinated employees returning from amber list countries will still have to isolate and could work from home for 10 days if possible. 

The Test to Release scheme applies to all those who need to self-isolate on return to England from amber destinations. These people can choose to pay for a private COVID-19 test after day 5 of their isolation period. If the result is negative, they can stop self-isolating although they will only be able to return to work if the employer agrees and this complies with the lockdown rules in place at the time.

The extra test can only be taken five full days after the person left their destination. If people are not on the Test to Release scheme they will need to self-isolate until 10 full days have passed. All people must continue to self-isolate while awaiting the test result.

The scheme gives employers little advantage because employees must still self-isolate on arrival in England. The earliest they can take the test is 5 full days after they were last in a place that is not on the travel corridor list. So in most cases this will be on the 5th full day of self-isolation, they must then take the test and get results. So realistically a negative result may end up only reducing the isolation period slightly.

If any test is positive the person will need to self-isolate for another 10 days counted from the day of the test, or the first symptoms if that is earlier. People in the same household should also self-isolate for 10 days from the date of the positive test. Further PCR tests are required  on days two and eight of the 10-day quarantine period, whether isolation is at home for arrivals from amber countries or in a hotel for arrivals from countries on the red list.

Any inconclusive test result means self-isolation must continue for 10 days or until another privately provided test produces a negative result.

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

Now lockdown has essentially been lifted and travel restrictions eased employees may travel on holiday despite quarantine rules being in place in various destinations.

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 the requirement for a 10-day quarantine period either at home or in a hotel upon return to the UK when returning from certain destinations. 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 cancelling 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 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 them from travelling abroad especially to red destinations by pointing out that any self-isolate/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. 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 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. 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: If we have allowed employees to carry over annual leave from 2020 can we ask them to use it by a particular date?

Many employees will have carried over annual leave from 2020. Special coronavirus regulations introduced in March 2020 allow for this holiday carry-over. In summary, if holiday was 'not reasonably practicable' during the pandemic then up to four weeks could be carried over for the next two leave years so until 2022. Employers can ask employees to use up their annual leave by a certain date, although there are issues to consider (outlined below). Employers may wish to reduce outstanding annual leave as businesses return to normal.

Reminder of normal rules
UK workers get 28 days holiday per year including bank holidays. This entitlement cannot normally be carried forward into the next leave year unless the employee:

  • agrees this with the employer, or
  • is on long-term sickness absence, or
  • is on maternity leave and is unable to take all of her entitlement as a result.
Payments in lieu of holiday are usually disallowed unless the worker is leaving the employer. This has been changed due to the pandemic.

COVID-19 carry-over rules
Under amendments to the Working Time Regulations the normal rules on carrying over annual leave have been modified. The rules apply if it was not reasonably practicable for the worker to take some, or all, of the holiday to which they were entitled due to coronavirus. If so, they can carry over up to four weeks (not the full 28 days) of unused leave into the next two leave years.

This will help support provision of staff in key sectors such as food and healthcare during the pandemic who may have not been able to take holiday as normal (see Working Time (Coronavirus) (Amendment) Regulations 2020). The normal obligations on employers to ensure workers take their statutory entitlement in one year or incur a financial penalty are also lifted.

Employee status
The COVID-19 holiday amendments to the Working Time Regulations 1998 apply to all employees. Workers who do not have employee status (such as agency workers), and some casual and zero-hours contract workers are also included. The only exceptions are those covered by regulations other than the Working Time Regulations 1998 including some merchant seamen, fishermen, civil aviation staff, some armed forces staff and doctors in training to whom special rules apply.

Using leave by a particular date
In practice many employers simply provide advance notice to all staff that they should book annual leave by a certain date even if this means holidaying at home whilst travel is restricted. Using leave by a certain date depends upon older standard employment law provisions. These are rarely used by employers but enable them to require workers to take holiday when the employer chooses. The employer must give twice as many days’ notice as the period of leave the worker is required to take; for example, if the employer requires the worker to take two week's annual leave at a certain time, at least four weeks' advance notice must be given. If the employer cancels employees’ pre-booked leave, the notice period is shorter and is the same length as the period of leave to be cancelled. Employers can ask workers to take or cancel holiday with less notice but need the workers' agreement to do so.

Risks
Insisting an employee takes annual leave during a periods of restriction when government or international advice may prevent them from travelling freely anywhere, is not without risk. Even though employers are entitled to require holiday to be taken, if the employee’s reasons are not taken into account disgruntled employees may attempt breach of contract or even discrimination claims. Employers should consider whether any restrictions including travel restrictions, testing or self-isolation would prevent the worker from relaxing and enjoying their holiday. It may help to acknowledge that travel might not be available but that a beneficial break from work pressures may still be possible. Ideally the employees should agree, which they may do if the employer explains why they need to take annual leave by the certain date.

Q: How can I make sure that employees who have not been furloughed are able to take leave that is due to them?

Employers can encourage employees who have not been furloughed to take leave due to them in a number of 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. Employees in some sectors will have been working throughout the pandemic; they may be at risk of exhaustion and delay to their annual leave may be inadvisable. 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 forthright about 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. Insisting an employee take annual leave during a period of lockdown when government advice prevents them from travelling freely anywhere, is not without risk. Ultimately staff might not want to use annual leave when they feel they want. For further details see our Q: If we have allowed employees to carry over annual leave from 2020 can we ask them to use it by a particular date? (above).


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. Further detail on carrying over leave is contained in the Q:If we have allowed employees to carry over annual leave from 2020 can we ask them to use it by a particular date? (above).


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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