Employees returning from overseas will, in the majority of cases, no longer be required to self-isolate for 14 days since the rules changed on 10 July 2020 and air bridges were created. However, the 14 day quarantine period still applies to travel from countries not listed as exempt in the travel corridors guidance from Government and as we saw this weekend with Spain, it can be reintroduced at very short notice, effectively pulling the rug from under the employee’s feet. This blog considers the issues that arise.
Can the employee work from home?
If an employee who has to quarantine can work from home during their self-isolation, they should continue to work and be paid as normal.
A self-isolating employee might ask to work from home while their colleagues are back in the workplace, especially as more and more people return to work. There is no ‘right’ to home working, and employers can specify an employee’s place of work, but it would generally be reasonable to allow home-working for a 14 day period if the employee’s job can be done effectively from home – particularly if remote working was allowed during full lockdown and the evidence is that this works. Thus employers will have difficult decisions to make about what roles can be done effectively from home and the usual challenges around managing such work.
This creates a potential gulf between those employees who could work from home and those who can’t, often penalising those in lower paid and hands-on roles which don’t lend themselves to home working. We are aware of some employers therefore publishing a policy in advance that certain roles will not be considered as suitable for home working (to address this issue up front so there is no debate later) or even ruling that they will not regard any roles as suitable to work from home in these circumstances where the employee is choosing to travel and taking the risk of government advice changing so they don’t perpetuate this gulf.
This could apply to the staycation given local government powers to lock down a localised area – you could travel in the UK and find yourself unable to return home too.
I would argue if the employer has been clear on the rules and warned the employee in advance the employee will be in the same position as the person who cannot work from home – see below.
What if the employee cannot work from home?
If the person cannot work from home, the position in respect of pay is not 100% clear. Arguably such an employee is not able to work and so the implied right to be paid falls away and the employee is on unpaid leave.
In one Court of Appeal case involving an NHS Trust and suspension (North West Anglia v Gregg) the Court of Appeal was willing to find that, if the employee is ready and willing, and the inability to work is the result of a third-party decision or external constraint, any deduction from wages was unlawful depending on the circumstances. An “involuntary” inability to work, or one resulting from an “unavoidable impediment”, may render the deduction of pay unlawful. We don’t yet know if the Courts are willing to stretch this principle to cover the situation now faced by employers? I would argue they shouldn’t because it puts a heavy burden on employers and where would you draw the line?
However, if the overseas trip were booked in the knowledge that there would be a period of self-isolation at the end of it, it may be very difficult to succeed in arguing that the inability to work is caused by a factor over which they had no control. Thus I’d recommend pointing out to staff that government policy can change very quickly and they cannot take it for granted that any travel away from home won’t cause them to send up self-isolating/being trapped somewhere for longer than planned.
Statutory sick pay rules have been extended to cover those living in ‘bubbles’ with others where someone has Covid-19 and the situation where the track and trace system tells the person to self-isolate but those rules don’t cover this situation. My understanding is the government aren’t planning to extend the rules either.
Can the employee take annual leave instead?
In this situation the employee may wish to use their annual leave so that they are paid in full. This may be a practical solution but this results in employees having extended periods away from work with planning for cover to be dealt with.
Employers may wish to distinguish between employees who have been caught out by the rule change and had already travelled thinking they were using an air bridge, and those who chose to travel later/stay in Spain despite the requirement to self-isolate on their return. That would require an understanding of what happened in individual cases and possibly the exercise of discretion so the employer would need to make decisions on a case by case basis. That always risks favoured employees receiving different treatment from others?
If the employee does not wish to take annual leave then it is unlikely that the employer could force them to – the employer will not have the time needed to give the employee double the amount of notice of the period of leave.
Can employers stop employees from travelling to particular countries?
Not everyone who plans to travel abroad will be doing so to enjoy a holiday/jolly. There may be specific circumstances where an employee is required to travel, for example to visit a sick relative or attend a funeral. Care will need to be taken to avoid grievances and discrimination complaints and to make reasonable exceptions.
You can revoke pre-authorised leave by providing notice. This needs to be the same number of days as the holiday the employee wanted to take (e.g. ten days’ notice to cancel ten days of leave). However, holidays are sacrosanct to many and the employer needs to think about the implied contractual duty not to unreasonably destroy or damage the relationship of trust and confidence. It might be better to communicate with staff about the risks and point out what the pay consequences might be and rely on employees being sensible and cancelling overseas trips themselves?
With employees who are planning to travel in the near future, if you might struggle to manage without them for the length of their proposed holiday plus the 14-day isolation period, you might use this legitimately to refuse the request to take holiday at a particular time, especially if you suggest an alternative set of dates?
Remember if employees cannot use all their holiday this year they can carry it forward for the next 2 years (if it has not been reasonably practicable to take it in the current holiday year due to the effects of coronavirus). The need for workforce cover is listed as a relevant factor in the government’s guidance on holiday entitlement and pay during coronavirus.
What if an employee we believe has travelled and should be quarantining turns up to work?
It is a criminal offence to attend work during the compulsory self-isolation period so anyone who did this should be sent home immediately. In England and Wales to fail to adhere to the self-isolation requirement ispunishable on summary conviction with an unlimited fine so employers should not encourage the employee to commit such an offence and attend work and aide that criminal offence being committed. A slightly different regime of fines applies in Scotland.
There is no specific duty on employers to check where employees have been indeed quizzing them about their annual leave is likely to invade privacy However, general health and safety duties mean that employers should enforce the self-isolation rules in order to protect others in the workplace if they know or suspect that an employee has just returned from somewhere that triggers isolation.
It may be advisable to ask all employees returning to the workplace after annual leave to declare they haven’t returned from a country that triggers self-isolation as well as getting their confirmation that they aren’t required to self-isolate for any reason (such as someone at home being sick).
What if the employee is trapped somewhere?
Some travellers caught up in this situation may find that flights have been cancelled and they are trapped somewhere for an extended period. It may be possible for an employee in this situation to work remotely. If not, they would have no entitlement to full pay or sick pay (unless actually unwell), leaving the options of additional holiday or unpaid leave in the same way as spelt out above. (This assumes the travel is not work-related).
Refreshing Law Limited
27 July 2020