How will new quarantining announcements affect you and your employees?

Recent announcements by the government have amended the rules on self-isolation for those returning to the UK from overseas. The addition of Spain and its territories (including the Balearic and Canary Islands) is in response to a recent increase in COVID-19 cases in that country. As of 26th July, anyone returning from Spain will join thousands of other returning travellers having to self-isolate for fourteen days.

It is likely that the government will deploy similar measures in response to increases in COVID-19 infection in other countries, often with very short notice, so both travellers and their employers will need to be aware of what the self-isolation rules require and how this can affect their ability to carry on working. This will require careful attention to media announcements and reports on the pandemic in particular countries.

The rules on quarantine

These are significantly more restrictive than those which were imposed at the start of the lockdown in March. Anyone who falls under the quarantine rules has to follow them unless they have an exemption (see below).

Anyone returning from an affected country will be asked to provide an address where they will be residing during the self-isolation period of fourteen days (but this may be altered by the government). If the returning person refuses to provide this information, they can be fined £100. Random checks will be carried out to verify that people who have been asked to self-isolate are actually doing so.

Affected travellers must drive in their own vehicle directly to their destination, with no detours, where possible. Once they arrive, they must not use public transport or taxis during the 14-day quarantine period. They cannot go to work, school or public areas or have visitors except for those who are counted as essential support. They are also prohibited from going out to buy food or other essentials if they have other people they can rely on to do it for them. Neither can they go outside for exercise except in their place of residence (home or garden).

If a person is found not to be self-isolating, they can be fined up to £1,000 (in England, Wales and Northern Ireland) and £480 in Scotland. Those who are found to be persistently breaking the rules may see those fines increase to £5,000.

Statutory sick pay

A key factor for employers to bear in mind is that people returning from overseas will not have an automatic entitlement to statutory sick pay during the quarantine period unless they meet certain conditions, one of which is displaying coronavirus symptoms. The government website says a person will not qualify for SSP if they are self-isolating after entering or returning to the UK and do not need to self-isolate for any other reason.

What should affected employees do?

As has been mentioned above, quarantined individuals cannot attend their workplace, which means that they should follow their employer’s absence reporting procedure. The absence should be recorded as authorised, unless they are now presenting the symptoms of coronavirus.

If staff who are quarantined can work from home and the employer is happy for them to do so, they can continue to carry out their job. If they cannot work from home, then the employer must not ask them to come back to work and – if they turn up – must send them home again.

If someone cannot return to work and they are unable to work from home (perhaps because their job involved working outside or in another person’s property) then they have no automatic entitlement to be paid. It is also the case, as mentioned above, that for an employee who is self-isolating and does not have the symptoms of coronavirus, there is no entitlement to sick pay. This will, naturally, have a detrimental effect on the finances of affected employees.

One option for softening the financial blow is to relax the standard holiday policy and allow them to convert the quarantine period into annual leave, even if (as may have been the case with returners from Spain) it was not possible to give the required notice.

Telling employees not to go on holiday

With all the disruption that can be caused by a 14-day quarantine period, employers may be thinking that the easiest solution would be to tell their employees not to go on holiday until it is safe to do so. While employers do not have the power to forbid their employees from going on holiday to countries that could be affected by quarantine restrictions, they can explain to those who are considering it that if they find themselves in quarantine as a result, they will not be paid during that time. This may concentrate the minds of those who were considering holidaying overseas. However, given the long period of time between booking a holiday and travelling to the destination, many people will have booked before the lockdown was introduced and they may decide to travel anyway in order not to lose the money they have already laid out and suffer the loss of income during the quarantine period.

Cancelling annual leave

Some employers have explored the possibility of cancelling holiday leave that has already been authorised to stop staff who wish to travel abroad from doing so. While this is feasible, it should also be treated with some caution since some contracts of employment or holiday policies may set out the way that holiday is cancelled; if this is the case, the employer must follow their own procedures. If they do not have a policy or procedure covering this, they should prepare one as soon as possible, as it is likely that this situation will occur repeatedly in the foreseeable future. Such a policy or procedure should be drafted with the advice of an employment law specialist and will let employees know what the expectations are if they travel overseas and is asked to self-isolate when they return. Those expectations can include notification of any overseas trips, how to report absence, what will happen with pay and the arrangements for using paid leave to cover the period of quarantine. Employees will then know the risks of making an overseas trip and be able to make an informed choice.

If there are no procedures governing the cancellation of holiday, the fallback is to the mechanism within the Working Time Regulations, Regulation 15(2)(b)which requires the employer to give as much notice as the leave they want to cancel – so, for example, if the period of leave is two weeks, the employer must give two weeks’ notice. They should also provide an explanation to the affected employee and advise them when it will be possible for them to re-book the leave.

While it is possible to cancel leave, as outlined above, this move will most likely be unpopular and could lead to calls for compensation for associated costs which the affected employees may have incurred. In extreme cases, their reaction may be that the employer has acted unreasonably and is in breach of what is known as the implied term of mutual trust and confidence. This is a serious matter for the employer as it could lead to the employee resigning and claiming constructive dismissal (although they can only do this if they have over two years’ service).

Dismissing quarantined employees

Some employers have wondered if they can dismiss an employee who cannot return to the workplace because of the quarantine restrictions. Despite what certain government minsters have said, there is currently no specific protection against dismissal in these circumstances, although this may change depending on how the government introduces new legislation. However, employees who have two years’ service may be able to submit a claim for unfair dismissal. If they do this, the employer needs to show that they had a fair reason for the dismissal. Failure to turn up for work could well be considered a fair reason for dismissal, but it will depend on the reason for the quarantine.

They would also need to show that their procedure was fair – including an opportunity to appeal. By the time a fair procedure has run its course, the employee would be able to return to work anyway, so this is an approach fraught with difficulty and should be embarked upon only with advice from an employment law specialist, or it could end up costing the employer dearly.

If an employee goes abroad in good faith and with no restrictions on their destination and then returns to find that restrictions have been imposed while they were away, an Employment tribunal may be more sympathetic to their claim than would be the case if they went to a country that already had quarantine restrictions imposed, knowing this and also fully aware of what their employer’s reaction would be when they returned. Even if the latter situation applied, the employer would still have to convince a tribunal that the reason for the dismissal was within what is known as the “reasonable range of responses”, which is affected by the individual circumstances of the case.

Workers exempt from quarantine

There are certain types of workers who, by virtue of their occupation, are exempt from the quarantine regulations. It is a long and comprehensive list and can be found at https://www.gov.uk/government/publications/coronavirus-covid-19-travellers-exempt-from-uk-border-rules/coronavirus-covid-19-travellers-exempt-from-uk-border-rules

What should employers be doing now?

Employers should start preparing a policy now for how they are going to deal with quarantine restrictions, especially as more countries are likely to be added in the coming weeks and months. It could be the case that travel is like this for some time.

Employers should be clear on what their policy is, and where possible apply a consistent approach to all staff. The policy should be communicated as soon as possible so that people with holidays booked can make an informed decision about whether they wish to travel or not, and what the consequences may be if a quarantine is imposed whilst they are away.

The policy should be communicated with staff as soon as possible to allow for feedback and any amendments that may be required.

Overall, employers should try and take a pragmatic approach to what is a very difficult situation, and one that is ever changing. It would also be recommended not to make any “knee jerk” decisions as a Tribunal may not look upon them favourable given the circumstances.

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