Coronavirus, holidays in Spain and reckless behaviour – where are we now?

We could all be forgiven for struggling to keep up. A few weeks ago, the prospect of a much-needed trip to get a little summer sun started to seem a possibility. Cue many people taking advantage of the resumed schedule of flights to Spain to recover from months of home-schooling and home-working. Then on Saturday came the news that anyone returning from Spain, including the Balearic Islands and Canaries, must self-isolate on their return for 14 days.

Further flare-ups of COVID-19 make it look increasingly likely that this is just the first of further restrictions being put in place at short notice. For employers who were only just starting to take steps to bring staff back to the workplace this could represent a further challenge to business operations. Below is our quick guide to dealing with possible quarantine issues.

  1. If staff have holiday booked, can we tell them not to go to Spain?

An employee is entitled to go to Spain if they wish, despite government advice to the contrary. But you are entitled to explain the consequences if they do so. If you cannot accommodate them working from home on their return, and you can’t agree to them taking any further paid time off, you can discourage them by making it clear they will have to follow any quarantine advice in place and won’t necessarily be paid during this time.

  1. Can I cancel their leave to stop them travelling abroad?

Yes, but on top of the potential damage to good will, there are risks attached. If there are no express provisions in the contract of employment or your holiday policy, the Working Time Regulations provide a mechanism for cancelling leave. You need to give as much notice of the length of leave you want to cancel – if it’s two weeks’ leave you have to give two weeks’ written notice. You’ll need to explain the reasons for cancelling the holiday as well as when and how they can re-book.

In addition to the morale issues, if staff believe the action is unreasonable, some may threaten to resign and claim constructive dismissal, although they’ll need two years’ service to do so and the current jobs market may mean that the numbers prepared to contemplate such an action are relatively small.

  1. If they decide to go anyway, can I dismiss them if they can’t return to work because they are in quarantine?

Despite what you may have heard to the contrary (ahem, Mr Raab) employees don’t have specific protection from being dismissed in these circumstances. If they have two years’ service, they may decide to try a claim for unfair dismissal.

Dismissing someone for failing to turn up for work is, potentially, fair but an employee may find a sympathetic tribunal prepared to rule that it was unreasonable to dismiss someone returning to the UK to find that quarantine rules were imposed during their holiday.

Our view is that an employee’s decision to travel to a country where Foreign Office advice is already to the contrary is unlikely to be reasonable. Consequently there may be grounds for disciplinary action against an employee who chooses to travel and makes themselves unavailable for work for 14 days on their return.

  1. Can we ask staff to continue to work during quarantine?

If they can work from home and you are happy for them to do so, there’s no problem. What you cannot do is require them to breach quarantine and return to the workplace. They should be sent home if they do turn up. Failure to self-isolate during the 14-day quarantine is a potential criminal offence with a fine of £1,000.

  1. Does the employee have to tell us that they are in quarantine?

Yes, they need to explain why they are not at work and to agree the basis of their absence, whether unpaid, or paid. If they subsequently fall sick, their absence may be treated as sickness absence as long as they comply with your policy.

  1. Are staff who are self-isolating entitled to be paid?

Usually, if an employee cannot attend work and cannot work from home, there is no entitlement to pay. There are some exceptions. If an employee has been required to travel abroad for business purposes and is then subject to quarantine, it is reasonable for them to be paid during their absence, even if they are unable to work from home.

If an employee has recklessly placed themselves in a position where they need to self-isolate, such as attending an illegal rave where they did not practice social distancing, an employer is likely to be able to insist on them staying away from the workplace for the safety of other staff. In such instances, the employer should consider the status of the absence and whether it amounts to a suspension – in which case it may, counter-intuitively, need to be paid leave.

By contrast, an employee who has unwittingly come into contact with the virus and is advised to self-isolate by the public health authorities may well only be entitled to SSP if they have no entitlement to company sick pay.

  1. What if they are on furlough?

If a member of staff is currently furloughed and not expecting to return to work in the foreseeable future, they may take the view that a period of quarantine is a price worth paying for a trip abroad. It makes sense to keep in touch with staff in furlough and asking them to notify you if they do expect to be away for any period, especially if you may require them to return to work at short notice. If they are not required and they do need to self-isolate, there is no need to bring the furlough period to an end if you had no other reason to do so.

As with all things COVID-19 related, the employment law position continues to evolve and it makes sense to take our advice in specific cases. Please do get in touch if any of the above raises questions.

 

If you would like further advice tailored to your particular circumstances, please contact us.