Going abroad during the coronavirus pandemic: when holidays can lead to unauthorised absence

10 August 2020

As parts of life slowly try to return to some sort of normality after lockdown due to the COVID-19 pandemic, people are understandably now wishing to go abroad on holiday. This has led to an increase in holiday bookings as cooped-up people sought to escape England and head for sunnier climes. 

So, what does this mean for both employees and employers when booking international breaks and what are the potential risks of sudden changes in Government advice and restrictions.

“I didn’t think I would have to self-isolate when I booked the holiday”

Employees may feel that they booked their holiday abroad “in good faith” and therefore should not be penalised if a quarantine is subsequently imposed; however, the Government has made it clear that the exemptions from the quarantine rules could be reversed at any time, depending on the prevalence of COVID-19 in those countries at any time. There is, therefore, a responsibility on the part of employees to take that into account when planning their holidays.

Where employees are required to self-isolate upon their return from a holiday abroad, if they are not able to work from home then the employer is entitled to deem this to be unauthorised absence and therefore unpaid. The employer could take disciplinary action against the employee although they would be advised not to do so unless they can demonstrate that the absence from work causes significant disruption.  Best practice would be for the employer to state that employees choosing to go on holiday abroad during the pandemic run the risk of having to self-isolate upon their return and that this would be treated as unauthorised leave with potential disciplinary consequences. The employer would still need to undertake a fair disciplinary process before issuing any sanction.

Some other common problems employers face in connections to employees taking holiday:

“My holiday request was declined but I will still go on holiday because it’s all already arranged”

Requests for annual leave by employees should be given with notice of at least twice the length of leave requested (or longer if so agreed in the employment contract or the absence policy). Employers have the right to refuse annual leave requests and must do so with a notice at least equal to the length of leave requested. There is no legal requirement to give reason for refusal but it is good practice to do so, especially to safeguard the mutual trust and confidence that exists between the employer and employee. The request should only be refused on basis on genuine business needs and in good faith.

A good absence policy will stipulate that employees shouldn’t commit to firm holiday arrangements before annual leave has been authorised. It will normally say that the employees must not make any positive holiday arrangements before the leave request has been approved. By the same token, the employer should reply to any requests promptly to allow employees sufficient time to make the holiday arrangements.

If the employee still takes holiday despite the refusal, this can be treated as unauthorised leave and the disciplinary process will apply when dealing with it. Note that an investigation will still need to be undertaken and a fair disciplinary hearing held before any sanction can be issued.

“They refused my holiday so I will pull a sickie”

If the employee calls in sick on the same days they previously requested annual leave for (and the request was refused), the employer may ask for a doctor’s note as evidence of genuine sickness. You must ensure that you reserve the right to do this in the employment contract or in the sickness absence or leave policies. As doctors generally only issue these after eight days of sickness, you might need to pay for the note.

When the employee returns to work you should hold a return to work meeting and ask them how they are feeling. You should not accuse the employee of lying unless you have clear evidence but you can explain what impact their absence had on their colleagues and whether they see why the company might take a view that the sickness is not genuine given it occurred at the same time as the refused holiday request.

“My return flight was changed to arrive on the day after I am meant to be back at work; maybe they won’t notice”

Returning late from a holiday is likely to constitute unauthorised absence which can result in disciplinary action and it is really important that employees are aware of this. It is important to examine whether employees are given guidance on what to do if their travel plans are disrupted or something else prevents them from returning from holiday on time.  You should never make assumptions about the reason for their delay and, in absence of their contact; you should try contacting them either by phone or email. Make note of every attempt and take brief notes of the conversation if you manage to speak to the employee. You might also want to speak to their emergency contacts if you are still unable to ascertain what is going on. If you are unsuccessful you should write to the employee explaining this is unauthorised absence and you will be initiating disciplinary process.

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