Q An employee has a holiday booked to a country on the government’s amber list for international travel; they are still planning to go, but won’t be able to do their job properly during a quarantine period when they return. Can you, their employer, prevent them from going by cancelling their holiday leave?
A You can refuse to allow an employee to take specific days off as holiday, but be mindful of other potential consequences before deciding to go down that route.
Firstly, check the wording of the employment contract. If there’s nothing specific about cancelling holiday, then the Working Time Regulations 1998 allow you to refuse holiday by giving the employee notice that is at least twice as long as the number of days that you are refusing (eg. if you are cancelling a one week holiday, two weeks’ advance notice is required).
Remember that your employees must be allowed to take their statutory annual holiday entitlement in each year, so you may not be able to cancel holiday at the very end of a holiday year if that would then leave them short.
While you may be able to cancel holiday, be careful that your actions do not breach trust and confidence, which could give rise to a claim for constructive dismissal. Any conversations about the holiday before it was booked may be particularly relevant: if you were aware of the destination and authorised the holiday, it would be all the more unreasonable to cancel it. In those circumstances, at the very least the employee will expect compensation for the cancelled booking.
The actual problem that an isolation period will create is also relevant: the context of your decision is very different if their isolation is simply inconvenient, rather than rendering the performance of their job impossible.
An alternative approach may be better. If their work cannot be done from home, you could advise that any extended period off work will also come out of their holiday entitlement, or will be unpaid leave. While you would need to exercise caution, you could make it clear that any extended absence will be treated as an unauthorised absence and therefore a disciplinary offence.
Once the impact of the extended absence is made clear, the employee may well consider an alternative destination.
Will Walsh is an Employment partner at DMH Stallard. He can be contacted by phone on 01293 558540 or by email at Will.Walsh@dmhstallard.com