Annual Leave Requests

Since 17th May 2021, only travellers returning to England from green list countries or Ireland, the Channel Islands, and the Isle of Man were able to avoid quarantine. As of 19th July, 2021 individuals who have received both vaccines will be permitted to travel to amber list countries without being required to quarantine upon return. In the case of employees intending to travel to destinations on the red list or amber list (without having received both vaccines), there are certain steps employers can take.

One option is to inform employees that if they choose to travel overseas and are subject to quarantine on their return, they will not be eligible for contractual pay during quarantine unless they are able to work from their place of quarantine. Some employees however may still have sufficient leave to take on their return meaning that the warning of nil pay may be irrelevant. If the risk of an employee being required to quarantine for up to 10 days (assuming they don’t obtain a negative PCR test on day 2 of their return) is likely to create operational difficulties for an employer (where for example the employee has booked 2 weeks’ annual leave) it is open to an employer to simply reject the annual leave request, pointing out that travelling to an overseas country which requires the employee to quarantine on their return is the same as booking a period of leave which is beyond what the employer is able to authorise due to difficulties it may create through a shortage of staff.

Whilst it is questionable whether it is a reasonable management instruction to dictate what an employee can do with their free time, employers are free to reject requests for annual leave where an employee’s absence may create difficulties. For example, due to staffing levels and the need to meet customer demand. Employers must ensure that when considering requests they do not exercise their discretion unreasonably in a way that may amount to a loss of trust and confidence on the part of the employee. The need to protect a business from prolonged and unacceptable periods of absence due to employees being required to quarantine however is reasonable and should amount to sufficient grounds to justify refusing requests from employees traveling to destinations that will require them to quarantine on their return.

There is nothing to prevent employers from changing their annual leave request procedures so they require employees to state their travel destination. Unfortunately, it is probably not possible to insist that employees inform you as a condition of approving their request. Where an employee refuses to disclose this information, employers should formally notify the employee of their stance in relation to employees traveling to a country where they will need to quarantine on their return. This would involve explaining that if the employee did have to quarantine (and were unable to work from home), not only would they receive nil pay but would also be treated as taking unauthorised absence from work which may result in disciplinary action. This would be on the basis that the employer had made it clear to the employee that they are  only willing to authorise a certain number of days (it would be advisable there were genuine business reasons for this rather than it simply being an arbitrary rule.) The employer should also highlight that the employee has traveled to a country knowing they would have to quarantine on return, resulting in them being absent for a longer period. This would mean the employee had acted in a way that would result in them being absent from work against the employer’s wishes and for reasons which were entirely in their control and could have been avoided.

The ICO has now updated their advice to organisations that are collecting vaccination status data confirming that collection of this data must be necessary and relevant for a specific purpose. However, it confirms that if there is a good reason for collecting the information, there is a lawful basis to process the data. Employers would need to carry out a data protection impact assessment (DPIA) before processing any data relating to vaccination status which should consider why this data is needed. It is likely that collecting this data in accordance with a risk assessment to ensure that the workplace is Covid-secure would be a legitimate aim under the GDPR. However, it is questionable whether the need to process this personal data in order to assess whether an employee will be required to quarantine upon their return to the UK will be a legitimate aim.