Can an employee be disciplined for going on an ‘illegal’ foreign holiday during the current lockdown regime?

The stating point is the current government guidance on travel. That guidance begins by stating unambiguously as follows:

‘’Under current UK COVID-19 restrictions, you must stay at home. You must not travel, including abroad, unless you have a legally permitted reason to do so. It is illegal to travel abroad for holidays and other leisure purposes.’’ It continues ‘’ It is illegal to travel abroad for holidays and other leisure purposes.’’

So far so clear.

It follows that without one of the legally permitted reasons, a person travelling abroad is acting illegally. The permitted reasons in the guidance include travelling for work, whereas holidays and leisure purposes are expressly prohibited.

So what if your employee puts in a holiday request form? Are you firstly entitled to ask if they are intending to travel at home or abroad? Generally it is difficult to regulate what an employee does out of work unless and until there is a sufficient connection between that behaviour (or its impact) and the employer/employee relationship. However, in the current lockdown regime, in my view an employer is entitled to ask what, if any, travel plans the employee has. That is because irrespective of legality, the travel may impact adversely on the health and safety of colleagues in that the risk of COVID infection is accepted as being much greater if a person does not ‘stay at home’.

Let us assume that the employee replies that no travel is intended . In that scenario the employer must accept the information in good faith. If it later transpires that, the employee has been untruthful, then disciplinary process would be justifiable, but the reason for any disciplinary sanction in those circumstances is likely to primarily be the dishonesty of the employee rather than necessarily the travel itself.

In the alternative, what if the employee retorts that they have had enough and they are flying to a foreign destination for a holiday? At that point, the employer has a number of options. The employer could:

  • Refuse the holiday request.
  • Direct the employee to the Government Guidance and explain the illegality of travel and ask them to reconsider their plans.
  • Warn the employee that if they travel then upon their return they may be subject to a disciplinary process and possible sanction up to dismissal.

If the holiday request is refused and the employee travels in any event, then a sanction up to dismissal may be a permissible sanction – the reason being disobedience of a reasonable instruction by the employer and absence from work without permission. Each case must however be judged on its own facts. For example, can the employee work from home during lockdown or are they still required to be at the employer’s premises?

What if the employee books a holiday but simply does not disclose the foreign travel, which is subsequently discovered by the employer? Can the employee be disciplined? The answer is probably yes if the consequences of the travel impact the employment relationship. Again, the specific facts are important, and particularly can the employee work from home during lockdown or are they still required to be at the employer’s premises?

Remember that in the event of a sanction up to and including dismissal the employer must show that it acted reasonably in treating that ‘illegal’ foreign travel as a sufficient reason to dismiss. If the employee tests and quarantines before their return to work and has authorised leave to cover the whole period of absence, or is able to work from home, then a sanction based purely on the illegality to travel may be difficult to justify.

In addition, an employer must act consistently in its disciplinary process. Dismissing on the basis of a foreign holiday whilst excusing other breaches of lockdown rules may well be unfair on the basis of a lack of consistency alone.