The Government's latest announcement reducing quarantine requirements for travellers returning to England from 14 to 5 days post-15 December 2020 (providing they can provide a negative test result for COVID-19) once again raises questions for employers on what right they have to influence employees' overseas holiday and travel plans over the Christmas period.
Some will understandably feel they deserve a holiday after lockdown restrictions or working intensely this year, others may wish to travel abroad to see family members.
The key question is whether a requirement that staff do not go abroad for Christmas is a reasonable and lawful instruction the employee should comply with.
This will depend on the circumstances and employers will need to exercise judgment and discretion.
If the employee is intending to travel overseas to visit an ill relative, for example, and has of late been working remotely, it may not be a reasonable instruction to require them to remain in the UK.
On the other hand, if the employee cannot work remotely and would be required to self-isolate on their return to the UK, which has not been factored into their leave request and which would cause the employer considerable disruption, the position may be different.
Each case needs to be considered on its own facts and employers would be well advised to have an indicative policy (to ensure consistency in approach) and open discussion with their employees about such matters, rather than imposing a blanket rule.
There may be a risk that employees with two or more years’ continuous service who feel their employer is giving unreasonable instructions may resign and claim constructive unfair dismissal.
Also, a blanket ban which has a greater adverse effect on a group of employees sharing a particular protected characteristic (a particular gender or nationality, for example) may leave the employer exposed to discrimination claims.
The COVID-19 pandemic continues to present challenges for employers in managing their workforce and the test of what is fair and reasonable is open to interpretation. What is impressive, however, is the continuing flexibility the majority of employers are demonstrating in seeing their way through the COVID-19 challenge.
An article considering similar issues was published in HR Magazine on 1 December 2020.