By Angela Strzyzewska, Solicitor.
The government has recently announced that from 8 June 2020, anyone arriving in the UK (whether as a resident or a visitor) will be required to self-isolate for 14 days. Some individuals are exempt from this requirement and these include certain health and care professionals, lorry drivers, certain oil and gas workers, seasonal workers, to name a few. Those travelling from Ireland, the Channel Islands and the Isle of Man are also exempt. A full list of exemptions can be found here.
The self-isolation requirement has been implemented with a view to reducing the risk of Covid-19 spread within the UK and involves not going to work, amongst other things.
There is currently no firm end date for the isolation requirement, but the government said the policy would be reviewed every 3 weeks. Next review is therefore likely to take place on or before 29 June 2020.
What are the employment implications of this?
Currently, the Foreign & Commonwealth Office (FCO) is advising against all non-essential international travel and has issued a Covid-19 exceptional travel advisory notice, which can be accessed here. No dates have yet been confirmed for when non-essential international travel will resume although some airlines have said they expect to resume their normal flights to accommodate the peak July and August holiday season.
Employers can of course instruct employees not to undertake any work-related travel and encourage compliance with government guidance, but it is unlikely to be a reasonable instruction to prevent (rather than seeking to dissuade) employees undertaking travel for personal reasons.
If employees go abroad, they will need to self-isolate for 14 days on their return, unless they are exempt from this requirement under the rules. If any employees are planning any overseas travel for personal purposes, it is prudent that employers discuss the quarantine requirements with them before they go.
If an employee develops Covid-19 symptoms on return, SSP would be payable (subject to any contractual sick pay entitlement). If they do not suffer any symptoms and are not able to work from home, employers will need to carefully consider what will happen on their return to the UK. A consistent, fair and non-discriminatory approach in dealing with the mandatory self-isolation period is important. Options may include a period of paid suspension, unpaid leave, or a period of extended annual leave to cover the self-isolation period.
Pay during quarantine
Generally speaking, there is no legal requirement to pay an employee during the 14-day self-isolation period upon arrival in the UK. However, employees may be able to work from home during quarantine and, if they can do so, they should be paid as usual. If this is not possible, this situation is unlikely to be covered by an employer’s enhanced sick pay policy or any other provisions on pay.
At present, there is also no entitlement to SSP during the quarantine period. It is possible, however, that complying with self-isolation on entry to the UK will be added to the list of circumstances eligible for SSP when the new rules come into force. We await further clarity from the government in this respect.
Employers could consider advising their workforce that anyone who does travel overseas will be required to remain at home on their return for a period of 14 days, as per the government’s guidance, and that such self-isolation would be unpaid. The critical point for employers to bear in mind is that employees should know the consequences of deciding to travel abroad, as far as their employment is concerned, before they make the decision to travel.
A safer approach may be to advise staff that they are required to agree, in advance, in writing, that their two weeks of quarantine upon return will be treated as unpaid leave (subject to any statutory right to payment, as outlined above). If that was all agreed with staff in advance, using annual leave while abroad and unpaid leave while in quarantine when staff return is possible.
Employees in this situation may wish to use their annual leave during the period of self-isolation so that they are paid in full. If this can be accommodated and the employee has sufficient holiday entitlement to cover that period, then this can be agreed in advance.
However, employers need to be careful where trying to force staff to take their holidays during the isolation period, as they will effectively be confined to their house, and the rest and relaxation purpose of annual leave under the Working Time Directive may not be met.
A clear policy should therefore be adopted surrounding the use of annual leave where the compulsory self-isolation period applies. It may be sensible to consider distinguishing between: (1) holiday requests booked prior to, or earlier in lockdown, perhaps offering a period of unpaid leave as a gesture of fairness rather than requiring additional annual leave to be used; and (2) requests booked since the quarantine requirement was announced.
In deciding how to respond to the self-quarantine requirement, employers should give careful consideration to the reasons for travel, given that requests to travel internationally (to the extent possible) are more likely to come from non-UK citizens and therefore raise the possibility of indirect discrimination claims.
The situation is different if employees are obliged to self-isolate after a period of work travel. In those circumstances, it would be reasonable to pay for this period as the employee’s situation results from the requirements of their job.
If you have any questions regarding this update, or if you have any other employment law queries, please don’t hesitate to get in touch with a member of the team on 0141 331 5150.