Last reviewed 7 October 2020

Reader note — December 2020. This article refers to self-isolation periods of 14 days which was correct at the time it was written. Please note that self-isolation periods have undergone adjustment and may no longer be 14 days.

As travel restrictions continue to be implemented in response to rising coronavirus cases in countries across the globe, it is essential that employers know how to respond to situations when staff are asked to quarantine. Ben McCarthy, lead employment law writer and researcher at Croner-i, explores this in more detail below.

The Covid-19 pandemic has significantly impacted upon travel plans throughout the summer months, with the Government specifying which countries it has determined pose a risk to travellers due to high rates of infection. This has resulted in people being advised to avoid travel to certain areas completely and to take certain steps upon their return that may have impacted upon their ability to continue to do their job. Now, with autumn setting in, taking holidays may not be the top priority for employees. Nevertheless, staff may still want to travel abroad in the coming weeks, and employers should be ready for this.

The legal requirement to self-isolate

Unless a country is on an exempt list specified by the Government, anyone who travels from that country back to the UK is now required, by law, to self-isolate for a period of 14 days. This means that they need to, essentially, stay away from the workplace for this period of time. When first implemented, this requirement only covered a small number of countries across the globe. The last few weeks has seen this change significantly, with destinations such as France and Spain being removed from the exempt list due to the substantial rise in cases within these countries. On both of these occasions, individuals were provided very little notice of this requirement. Many were already in these countries when told of the need to self-isolate on their return.

On 28 September 2020, the Government issued new regulations on this need to self-isolate, which applied not only to individuals in this situation, but their employers also. These regulations:

  • prohibit an organisation from allowing a worker to attend any place (except the place where they are required to self-isolate) for any purpose connected to the worker’s employment

  • set out the prohibition on knowingly allowing a self-isolating worker or a self-isolating agency worker to be present anywhere for work purposes, other than the place where they are required to self-isolate

  • require a self-isolating worker to inform their organisation of the requirement on them to self-isolate

  • require a self-isolating agency worker to inform either their organisation, the agency or the principal of the requirement on them to self-isolate. Whoever has received such a notification must pass the information on to the two other parties.

These new laws send a clear message to employers; trying to prevent employees from following the rules around self-isolation will not be tolerated. That said, how severe the penalty would be would likely depend upon the situation. For example, if employees are forced to come into work due to fears over losing their jobs, and therefore feel they have been pressured into breaking the law, their employer would likely face a more serious sanction.

Employees are also expected to inform their employer if they do need to self-isolate following travel. It is unclear what would happen if an employer was unaware of their employee’s need to self-isolate and therefore asked them to come into work as normal. In this scenario, their honest mistake may result in a lesser penalty. However, they would likely need to demonstrate they could not reasonably have been made aware of the situation

What should employees be paid in this situation?

The first thing employers need to note is that the requirement to self-isolate in this situation does not automatically mean that an employee is entitled to receive statutory sick pay (SSP). While employees are entitled to receive SSP when told to self-isolate by NHS Test and Trace, or because they themselves are showing symptoms of Covid-19, there is no such entitlement in place for quarantining after travel. This also means that no sick pay provided in this situation can be reclaimed from the Government through use of the Coronavirus Statutory Sick Pay Rebate Scheme, which is open for other instances of self-isolation. In short, employees do not have the right to be paid anything at all.

This likely reflects upon the fact that travelling abroad for a holiday is done at the risk of the individual in question. However, the situation does get trickier if an individual returns from a country that they travelled to for business purposes, and is asked to self-isolate. While they are still not entitled to any pay in this situation, employers will need to carefully consider if not paying them during the self-isolation period could do lasting damage to the employment relationship. Such an action could even leave the employer open to claims of constructive dismissal.

What should employers do in this situation?

Provided they adhere to the rules on their staff self-isolating, it is down to employers how they respond to this situation. Employers cannot really control what staff choose to do in their spare time, so it is crucial they plan for situations where employees do go abroad and are asked to self-isolate. One option is to permit employees in this situation to work from home unless they become too ill to do so, something that will likely be simpler to set up if staff did work remotely through lockdown. If this is not a viable solution, staff could be asked to take a further period of annual leave to cover the two weeks, or take the time as unpaid leave. Staff could even be given the opportunity to choose how they want to take this time, subject to the requirements of the business.

It should be made clear to staff what they will be expected to do upon their return from an affected country beforehand. If staff are to be asked to take unpaid leave, this may act as a deterrent to them for making the decision to travel.

Conclusion

The coronavirus situation is likely to go on for some time, and with it the increasing restrictions on travel. Employers should therefore make sure they are following all government guidelines and keeping up to date with legal requirements. This is a fast-moving situation and we will likely see even more substantial changes before it is over.

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