Following the announcement on 30 March by the Foreign and Commonwealth Office (FCO) of a repatriation package for workers stranded abroad, Thompsons has produced a Q and A briefing to explain their employment rights.
Clearly, workers are entitled to receive their holiday pay for the whole of their annual leave period. However, if they are unable to get a flight home before their leave expires, they should first check their contract to see if there is a compassionate leave or emergency leave clause they could rely on.
Although there is no legal obligation on the employer to continue to pay someone stuck abroad and therefore unable to work, Thompsons advises that it would be good industrial relations practice to do so, given the extreme circumstances caused by the pandemic.
If the worker falls ill while on holiday abroad and is self-isolating, Thompsons’ view is that they should be treated as any other worker in the UK who is self-isolating. In other words, they could request to be paid sick pay.
Similarly, if workers have come back into the UK prior to end of the leave they were taking and are advised to go into quarantine (typically for 14 days) they can ask for the annual leave which coincides with the period of quarantine to be treated as sick leave, rather than holiday. The attractiveness of this option is, however, likely to be determined by the amount of sick pay which the worker can claim and whether, if they choose this option, they will trigger their employer’s sickness absence policy.
If a worker takes some of their statutory four weeks’ annual leave as sick pay, the announcement about carry-over of holiday due to the effects of coronavirus (COVID-19) that is considered above would apply.
Although the same principle does not apply to contractual leave, employees could argue that it is not possible to split their leave into statutory and contractual components and treat them differently allowing them to argue that they should be allowed to carry over all outstanding leave for two years. If the employer refuses, the employee could lodge a grievance or their trade union (if one is recognised) could intervene and see if it can negotiate a collective agreement that would address this issue and find a resolution.
If the employer insists that an employee takes their holiday (as opposed to going on sick leave), they are likely to be in breach of the implied contractual term of trust and confidence as it is the employee’s right to choose whether to take sick leave during statutory annual leave if they are unwell. In these circumstances, the employee should be allowed to carry over the annual leave and may have a legal claim if it is refused.
On their return, the worker should be allowed to work from home where they are fit and well to do so. If it is not “reasonably possible” for a worker to work from home, they can travel to work but employers must ensure social distancing is maintained.
Articles shared by Thompsons relating to coronavirus (COVID-19) are correct at the time of publication. You should check the government's guidelines for the latest information and advice at https://www.gov.uk/coronavirus.