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25/07/2021

EXPLAINED: Can employers restrict staff from taking foreign holidays?

EXPLAINED: Can employers restrict staff from taking foreign holidays?

Although foreign travel looks set to be heavily regulated this summer, some employees may choose to book trips abroad.

From an employer's perspective, the statutory duties under the Organisation of Working Time Act will always dictate their approach to annual leave. It's perhaps no surprise that the working time legislation doesn't take mandatory hotel quarantine or travel bans into account.

So can employers restrict staff from taking foreign holidays?

Alan Hickey, Service and Operations Director at global employment law consultancy Peninsula explains below.

Can employers restrict staff from taking foreign holidays?

Although foreign travel looks set to be heavily regulated this summer, some employees may choose to book trips abroad. From an employer's perspective, the statutory duties under the Organisation of Working Time Act will always dictate their approach to annual leave. It's perhaps no surprise that the working time legislation doesn't take mandatory hotel quarantine or travel bans into account, so it will really be down to employers and their staff to discuss any concerns around foreign travel before agreeing on how to proceed.  Importantly, there is nothing in the law that allows an employer to forbid an employee to travel abroad.

Employer rights around annual leave

Employers have a statutory obligation to provide employees with at least four weeks paid annual leave per year, and many employers provide more than the statutory minimum. Employers only have the discretion to decide the timing around when employees use their annual leave. As above, there is nothing in the law that allows an employer to forbid an employee to travel abroad. 

Employer discretion around the timing of annual leave 

When it comes to the timing of annual leave, employers may cancel a period of annual leave if they have a legitimate business reason for doing so and they consult with the employee at least one month before the annual leave is due to commence. Provided the employer has fulfilled those two conditions, they will have complied with the law. 

Before deciding to cancel annual leave, employers should explore all possible alternatives. There should be a clear business reason for any decision to cancel a period of annual leave. Any such cancellation should only be considered as a last resort and should never happen without at least one month's notice. It is also essential to be mindful that employees may have paid for hotels, travel costs etc. and may be unable to recoup some or all of that money if the employer cancels their annual leave.

What sort of disciplinary action can be taken if an employee ignores a request to cancel annual leave and travels?

Provided the employer has complied with its statutory duty to provide at least one month's notice of the cancellation, an employee who takes an unauthorised holiday is likely to face disciplinary action for failing to follow reasonable management instruction and/or unauthorised absence. 

Can an employee who is working from home be sacked for going on holiday? They will be able to self-isolate since they will be working from home.

Suppose an employer cancels a holiday request for a legitimate business reason and provides the employee with at least one month's notice of the cancellation. In that case, the employee can expect to face appropriate disciplinary action for any subsequent unauthorised absence, whether they work from home or on-site. If remote workers can carry out their duties in full while completing any required period of quarantine, there should be no reason for disciplinary action. 

What about quarantine periods?

The situation is further complicated at the moment by various travel bans, mandatory home quarantine rules and most recently, mandatory hotel quarantine for arrivals from certain countries. The goalposts are moving from week to week, and it really is difficult for employers and staff to make plans for a trip abroad. 

If an employee is required to self-isolate or stay in a hotel during a quarantine period, a one-week holiday becomes a three-week absence and creates an added workforce management difficulty for employers, particularly if the employee is not able to perform their role remotely. Suppose an employee is unable to return to work due to rules around self-isolating or quarantining. In that case, the employer may have reasonable grounds to take disciplinary action as the employee is unavailable to perform their duties once the agreed period of annual leave has concluded.

These are unprecedented times, and employers along with their staff need to work together to find mutually agreeable solutions to these questions that have never been encountered before in living memory.   

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