The removal of Spain (but not its islands), Luxembourg, Andorra, Belgium and The Bahamas...
Quarantining on return from holiday: employer options
The removal of Spain and Luxembourg from those countries on the travel corridor scheme means that anyone returning from Spain (including the Canaries and Balearic Islands) and Luxembourg must now self-isolate for 14 days on return to the UK.
While the quarantine/self-isolation rules now apply again to those returning from Spain and Luxembourg , the government has said it will include other countries (and possibly other popular holiday destinations) if flare ups of coronavirus necessitate such action.
It’s unlawful to break the self-isolation rules. Quarantining employees are not allowed to come to work and an employer cannot ask staff to come to work during self-isolation – so unless they can safely work from home they will be unable to work. A failure on the part of an employee to comply with an instruction to self-isolate (in England, Wales and Northern Ireland) could result in a fine of £1,000.
Do we have to pay staff who are self-isolating?
- Unless the employee can work from home, doing their current role or an alternative, there is legally no requirement to pay them.
- If the employee is returning from business travel they have been asked to go on and must self-isolate, it would be advisable to keep paying them – a constructive dismissal claim may result otherwise.
- Employees who self-quarantine - and do not have coronavirus symptoms - are not entitled to statutory sick pay (SSP). Most company sick pay schemes are also unlikely to cover this scenario.
- One option may be to relax holiday policies and allow such employees to take any remaining holiday (if they have any left) during the self-isolation period – even if they’re not able to give the usual notice. Alternatively, consider agreeing to a period of unpaid leave.
- Another option may be to re-furlough the employee for a couple of weeks – provided they had previously been furloughed for at least three weeks before the rules changed on 1 July.
- Special consideration should be given to those who have travelled abroad specifically to say goodbye to a close family member who is seriously ill or to safely celebrate a religious festival.
Can we stop an employee going abroad on holiday?
- No but you can quite permissibly discourage them from travelling abroad by pointing out that, should they have to self-isolate/quarantine on their return, they will not be paid.
- You can revoke pre-authorised leave by giving notice of the same number of days as the holiday the employee wanted to take (e.g. 10 days’ notice to cancel 10 days of leave). Of course, cancelling pre-booked holiday at short notice will inevitably have employee relations implications and a better approach may be to talk to the employee about changing their holiday plans to a UK-based holiday.
- Note that an amendment to the Working Time Regulations allows employees to carry over holiday for the next two years if it has not been reasonably practicable to take it in the current holiday year due to the effects of coronavirus. However, the employee is still able to take holiday, just not able to go to their destination of choice and so this is unlikely to fall into the ‘not reasonably practicable’ category.
Can we dismiss someone if they cannot work because of having to quarantine/self-isolate?
- There is no specific protection from being dismissed in such circumstances.
- However, employees with two years’ service would more than likely succeed in a claim for unfair dismissal if the only reason they were dismissed is because the government changed the rules when they were abroad.
- This is because you would not be able to show that an absence from the workplace for two weeks while complying with the law fell within one of the statutory ‘fair’ reasons for dismissal and even if it did, dismissal would not be within a band of reasonable responses. Given that dismissing an employee who is sent to prison for a short period is likely to be unfair, self-isolation for two weeks because an employee took a holiday is far less serious.
- However, if an employee ignores a direct instruction and Foreign Office advice and travels to a country where they know they will have to self-isolate from on their return, then this may give rise to disciplinary action and failure to obey a lawful instruction is potential gross misconduct.
- Get a policy in place which says that:
- if employees go abroad, they do so at their own risk, and
- if they have to quarantine/are unable to travel back – and you cannot find work for them to do at home – that they will have to take holiday/unpaid leave
- Consider getting declarations and possibly evidence of bookings from employees in advance as to where they are going/where they have been to ensure they are not attempting to come back to work when they should be quarantining.
- Remember that you have health and safety obligations and you should ensure that self-isolation rules are adhered to protect others in the workplace.
- Remember that not everyone travelling abroad will necessarily be doing so for a holiday – staff may be attending a religious festival or visiting a sick relative. In such cases, just be understanding.
- Encourage your staff to keep you in the picture at all times.