1. If staff are self-isolating during a pre-booked holiday, is this treated as holiday or absence and can they reclaim their holiday?
That will depend on the reason they are self isolating. If they are ill with Coronavirus or symptoms related to it the normal rules apply. Generally, this means they must be allowed to take their holiday at another time – even if this means allowing them to carry the leave over to another year. However, this only applies to the first four weeks of paid holiday and you don’t have to allow them to reschedule any other leave.
If they are self isolating because someone in their house has symptoms of Coronavirus, but they are otherwise well, then the position is less clear. They are entitled to SSP because of the new rules on deemed incapacity, but that is not, necessarily, enough to bring them within the case law on rescheduling of annual leave for employees who are incapable of work due to ill health. You can therefore use your discretion, but if you do allow them to reschedule leave, you must make sure that you exercise it consistently and don’t treat one group of individuals more favourably than others.
2. Can people carry over holiday into the next holiday year?
If someone is ill suffering from the symptoms of Coronavirus they may be able to carry over up to four weeks of their holiday to the following leave year.
The following principles apply:
- The Working Time Regulations require a worker to take annual leave in the year in respect it is due. It cannot be replaced by a payment in lieu except on termination of employment.
- If a sick worker cannot, or does not wish to take holiday during the current leave year, it can be carried over to the next leave year (even though this is at odds with the strict wording of the Regulations). A worker does not have to ask to take annual leave whilst sick to preserve their right to take it at a later date, or to carry it over to the next leave year.
- You cannot ask a sick worker to demonstrate that they are physically unable to take annual leave whilst they are sick and must assume that if the worker does not ask to take holiday during sick leave it will accrue and, if necessary, be rolled over to the next leave year. This will be the case even if the employee is not sick for the whole of the leave year.
- A worker who becomes ill either before a period of scheduled leave or during that leave must be allowed to take their holiday at another time – even if this means allowing them to carry the leave over to another year. However, you can insist that your staff provide evidence of their illness such as a fit note or doctor’s certificate to prevent abuse.
- The right to accrue annual leave does not continue indefinitely and you can impose a “cut off date” of up to 18 months from the end of the leave year in which the holiday accrued (although it might be possible to reduce this to 15 months).
In many cases workers will be able to take their holiday in the current leave year if they’ve only been ill for a week or two. However, if an employee has been very adversely affected by the virus, they may be ill for many weeks and should be allowed to carry over leave that they’ve not been able to take.
If they are self isolating because someone in their house has symptoms of coronavirus, but they are otherwise well, then the position is less clear. They are entitled to SSP because of the new rules on deemed incapacity, but that is not, necessarily, enough to bring them within the case law on carrying over annual leave to a new leave year. You can therefore use your discretion, but if you do allow them to reschedule leave, you must make sure that you exercise it consistently and don’t treat one group of individuals more favourably than others.
3. Some of our staff have said they’d like to defer taking their holidays this year to help us continue to run our business. Can we agree to this if we’re short staffed?
All workers must take at least four weeks holiday each year to help protect their health and well being. In this time of stress and uncertainty, it’s particularly important for workers to take a proper break – even if they are unable to go on an actual holiday. You’ll need some system in place to prompt you to remind workers to take their annual leave.
If necessary, you can compel an employee to take holiday at a specific time by giving notice. Under the Working Time Regulations, you need to give at least double the length of notice for the period of leave. For example, if you want an employee to take one week’s leave, you need to give them at least two weeks’ notice. However, these notice requirements can be varied by a ‘relevant agreement’ such as a contract of employment.
You can though, allow them to carry over their remaining holiday to the next holiday year if you wish to – but you can’t pay them for not taking it, unless they leave your employment.
4. Can we cancel holiday leave we’ve already authorised?
In most cases, yes – but there are some risks attached. The Working Time Regulations provide a mechanism for employers to do this. Under Regulation 15(2)(b) you must give as much notice as the leave you want to cancel. Therefore, you if want to cancel two weeks’ leave you have to give two weeks’ written notice. You’ll need to explain to your staff why you have cancelled their holiday and tell them when and how they can re-book. Alternatively, you can compel an employee to take holiday at a specific time provided you follow the steps outlined in the answer to question 3 above.
Cancelling holiday at short notice may be unpopular. If workers have made travel or other plans they may ask you to compensate them for any cancellation charges they incur. However, last night the PM announced that people can only travel for limited reasons - and going on holiday isn't one of these so, this risk is unlikely.
They could also argue that you are acting unreasonably and are in breach of the implied term of mutual trust and confidence, which gives them the right to resign and claim constructive dismissal (they’ll need two years’ service).
However, these are not normal times. Hardly anyone will be able to ‘holiday’ in the traditional sense for at least a couple of months (probably longer). Anyone that takes a holiday now must do so at home - until travel restrictions are lifted.
In terms of maintaining good employee relations, we recommend that you speak your staff first to explain why you need to cancel their holiday. Hopefully, most will understand and support your decision.
5. How do we record the absence of someone who is self isolating but is perfectly well?
There’s no clear guidance on this. People who are self isolating are treated as incapacitated for SSP purposes, therefore it could be recorded as ill health absence. However, if you do this, we recommend that you discount the absence for the purposes of your sickness/absence policy.
If you can, we suggest that you record the absence as self-isolation – and make sure that your payroll systems can accommodate this. This will ensure that, when this is all over, you’ll know that they were compelled to not come into work.
If someone is self isolating but able to work from home, they are not absent and this should not be recorded as leave/special leave.
6. If someone is self-isolating with no symptoms are they entitled to contractual sick pay or just SSP?
Currently anyone who doesn’t have symptoms but lives with someone who does must self isolate for 14 days. In most cases employees will be entitled to SSP from the first day of their absence. They may also be entitled to contractual sick pay but this will depend on the wording of the policy and how you’ve applied it to others.
However, if they aren’t ill and are self isolating in line with government guidance and can work from home you should continue to pay them as normal.
Some people are choosing to self isolate because they are frightened of contracting the disease, or spreading it to others they care for. If they can work from home, you should pay them. However, if it’s reasonable to expect them to work (and that will be judged in context including how easy it is for them to travel if they are not a key worker) you could treat this as unauthorised absence and refuse to pay them.
Last night the government published full guidance on staying at home and away from others which said:
"Travelling to and from work [is permitted], but only where this absolutely cannot be done from home."
But, this situation needs clarifying as it's not entirely clear whether this limits travel to work for key workers.
The position with regard to those considered to be at high risk of suffering the most severe symptoms is less clear. At the moment, they are advised to socially distance themselves from others. This includes anyone over the age of 70 (even if they are perfectly well), those with underlying health risks, such as diabetes, heart disease and lung disease or weakened immune systems and pregnant women.
Social distancing is not the same as self isolating and SSP is only payable to those self isolating because of Coronavirus. That said, we believe the government is planning to extend SSP entitlement to high risk individuals who are unable to work from home.
Plus those individuals who are at the highest risk of harm are being contacted by the NHS and are asked to "shield themselves and stay at home".
You are responsible for the health and safety of your staff and shouldn’t insist they come into work against medical or government advice. If they do attend work, you’ll need to consider sending them home for their own safety and that of others. If they can work from home, you should continue to pay them as normal. If they can’t and aren’t actually ill (and aren’t technically self isolating), you may – in some circumstances - have to treat their absence as a type of suspension and pay them. We recommend that you take advice on this.
7. Can we recoup our SSP costs if they relate to Coronavirus?
Your organisation will be able to recoup its SSP costs (of up to 14 days) if you employ 250 or fewer staff. We don’t yet know how SMEs go about doing this (the legislation is still going through Parliament) and you’ll need to check government websites for further information. Unfortunately, if you don't fit that description, you'll have to meet the costs yourself.
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