Howes Percival's employment and HR law experts discuss what employers need to consider when dealing with employees returning from destinations which are subject to quarantine measures.
On Saturday 25 July 2020 the UK Government announced (with less than 6 hours’ notice) that people arriving to the UK from Spain would be required to enter into a 14 day quarantine, a move which is expected to impact on 1.2 million Britons this August alone.
Employers must now consider how to deal with employees returning from Spain and any other destination which is subject to travellers being required to quarantine on their return. This includes their pay and what work may available and also whether disciplinary action may be warranted.
WHO NEEDS TO ISOLATE?
The government has published a list of workers who do not need to isolate (found here), which includes (but is not limited to):
- Drivers of public service vehicles for the international carriage of passengers by coach and bus
- Drivers of goods vehicles for the international carriage of goods
- Workers engaged in essential or emergency works to the rail network (as part of a specialist team with or for Network Rail), but only if on automated ballast cleaning and track re-laying systems or a special rail maintenance technician maintaining or commissions industrial machinery.
- Seasonal agricultural workers who have an offer of employment for seasonal work (for edible horticulture, and at a named farm).
- Workers engaged in essential or emergency works related to water and sewerage services.
- Workers with specialist technical skills required for essential or emergency works in certain sectors.
- Nuclear personnel who are essential to the safe and secure operations of a licenced nuclear site
In most cases, an employee who falls within the above list will need to present at the UK border a letter from their employer, which details what specialist work they will be undertaking and must include contact details for the employee and employer
It is understood though that the vast majority of workers will not be able to rely upon a statutory excuse and will need to self-isolate on their return to the UK if they are travelling from one of the designated countries.
It should also be remembered that the list is not set in stone and as we have seen with Spain, may be subject to change at extremely short notice.
CAN AN EMPLOYEE BE REQUIRED TO ATTEND WORK?
If the employee can work from home, they can continue to do so. If they are unable to work from home, an employer should not require that the employee under quarantine to attend their workplace.
Breach of quarantine can result in a £1,000 fine for the employee. Additional breaches can attract fines of up to £3,200.
An employer should not require or permit an employee to physically attend work during quarantine, as to do so would be encouraging an employee to commit a criminal offence. If an employer required an employee to return to work, they may further risk breach of their health and safety obligations, which carries regulatory risk.
For employees who are unable to work from home, a decision will need to be taken by their employers as to how to treat the 14 days absence.
STATUTORY SICK PAY (“SSP”)
There is no entitlement to SSP for an employee whilst under quarantine.
If the employee develops coronavirus symptoms during quarantine, they will need to contact the NHS Track and Trace.
If the NHS Track and Trace test comes back as negative, the employee will still need to complete the 14-day quarantine period.
If the test comes back as positive, the employee will need to complete either 7 days self-isolation, or the 14-day quarantine period (whichever is the longer).
An employee will be entitled to SSP from day 1 if they test positive for coronavirus. If they are otherwise unwell during quarantine, they will be entitled to SSP from day 4 in the usual fashion.
An employee may be entitled to enhanced company sick pay depending upon their contract of employment or any published company rules.
HOUSEHOLDS WITH MORE THAN ONE EMPLOYEE
Only an employee who has left the country will need to quarantine. Their household does not need to quarantine, but will need to both self-isolate if they develop symptoms and contact Track and Trace to arrange a test.
In the event that an employee cannot work from home and the employee has sufficient holiday days remaining for the current leave year, the employee may (with the employer’s consent) take the quarantine period as holiday leave.
An employer may also allow the ‘‘carry forward’ of some holiday entitlement from the next/2021 holiday year though there is no legal requirement for employers to permit this and they must also not fall foul of the statutory holiday requirements for each leave year.
Should the employee have insufficient holiday and be unable to work from home, the leave may be treated as unpaid leave.
CAN AN EMPLOYEE BE RE-FURLOUGHED?
For an employee to be placed on furlough (or flexible furlough), they must have already undertaken a period of qualifying furlough before 1 July 2020.
An employee who has previously completed a qualifying period of furlough, and has returned to the UK to find that they are to undertake a period of quarantine, may seek to be placed on furlough for that period.
The Further Treasury Direction issued on the Coronavirus Job Retention Scheme (“CJRS”) states “No CJRS claim may be made in respect of an employee if it is abusive or is otherwise contrary to the exceptional purpose of CJRS”.
The CJRS guidance confirms that the purpose of the CJRS scheme is to assist employers who cannot maintain their workforce because their operations have been affected by coronavirus.
It is arguable whether the employee’s absence is caused by either the coronavirus pandemic, or their decision to take holiday leave abroad. The position is unclear and, pending government guidance, placing an employee of furlough carries with it the risk that a claim under the Coronavirus Job Retention Scheme may be unlawful. That said the ACAS published guidance does suggest that an employer can furlough an employee who is subject to quarantine.
Employers must also consider that, from 1 August 2020, they will need to contribute towards the cost of furlough leave.
The decision to place an employee on furlough leave is for the employer to make, and will be subject to the rules of the CJRS.
CAN EMPLOYEES FACE DISCIPLINARY ACTION?
If an employee chooses to go on a foreign holiday, having previously been told not to by their employer, and that holiday results in a 14-day absence through quarantine from the workplace, the employer may consider disciplinary action.
Although the government has encouraged employers to act ‘sympathetically’ to employees’ subject to quarantine, that request is non-binding.
Disciplinary action may be most appropriate where the leave is treated as unauthorised, particularly where a company policy has been put in place regarding the treatment of quarantine. Employers should tread carefully though in terms of dismissing employees in such circumstances and should not do so unless the policy against foreign travel is clear and has been clearly communicated.
- Put in place a policy to deal with employees taking foreign holidays that may result in quarantine. Ensure it is clearly stated what will happen within the quarantine period - whether this will need to be taken as holiday leave; unpaid leave; or treated as a disciplinary issue.
- Consider whether you wish to distinguish between holidays, which may have been booked before the pandemic occurred; whether quarantine was imposed after travelling had commenced; or whether the employee travelled in knowledge of the quarantine. Be aware that all these scenarios may be treated the same.
The need to quarantine and the effects of the same is subject to change and developing government guidance.
If you require any further assistance or have any questions on employees and quarantine or then please do not hesitate to get in touch with a member of the Howes Percival Employment Team.