Introduction

Since 26 July and 31 July 2020, travellers returning to the UK from Spain (including the Canary and Balearic Islands) and Luxembourg respectively have been required to quarantine for 14 days. If cases of Covid-19 spike across Europe, the UK Government may well remove more countries from the travel corridors list (i.e. those countries which can be visited without the need to self-isolate on return to the UK). This has scope to cause significant disruption to both employers and employees, particularly for those employees who are abroad when the quarantine rules change. Below we address employers’ frequently asked questions in cases where employees are required to quarantine for 14 days following a trip abroad.

1. Can employees work whilst in quarantine?

Yes, provided the employee is able and willing to work from home (and assuming the employee is not unwell with COVID-19 symptoms). If the employee is unable to work from home, the employer cannot require an employee to attend the workplace. Failure to comply with the quarantine requirements could result in a fine of up to £1000 or prosecution.

2. Does an employer have to pay an employee in quarantine?

If employees are able to work from home and do so, they should generally be paid as normal. If, however, an employee is unable to work from home, there is no entitlement to pay. While employees required to self-isolate because they (or someone they live with) had symptoms of coronavirus will qualify for statutory sick pay (“SSP”), this is not the case for an employee who is required to quarantine as a result of travel abroad. This was clarified in the recent update to the Government Guidance on SSP.

It is of course open to employers to exercise their discretion to continue to pay employees who are required to quarantine if they wish. If an employer does exercise its discretion to pay in respect of the quarantine period, it should ensure that it applies consistent treatment to employees in the same circumstances. So, where two members of staff have both taken voluntary holiday to Spain after the quarantine rules have come into force and neither can work from home, an employer should generally treat those employees in the same way. An employer may, however, be justified in treating employees who need to quarantine in different circumstances more favourably – for example, those employees who were already in Spain or had already booked to travel to Spain when the quarantine rules were imposed; or those who are required to quarantine following a business trip; or those who travelled abroad for a reason other than a holiday e.g. to attend a funeral.

Whatever approach an employer decides to take, it should communicate the position in clear terms so that employees can take an informed decision when making future travel arrangements.

3. Can an employee use annual leave during quarantine?

In circumstances where an employee is unable to work from home, employers would be well advised to consider relaxing their normal annual leave procedures to enable employees to take additional annual leave to cover the period of quarantine so that they do not suffer financially. If employees do not wish to take additional annual leave, or have insufficient remaining annual leave entitlement to cover the period of quarantine (which may be the case where a period of quarantine was unexpected), employers may treat the quarantine period as unpaid leave. For those employers who do not exercise their discretion to continue pay, it would be sensible to warn employees that this is what is happening. As an alternative to unpaid leave, an employer could consider furloughing the quarantining employees, but only if they consent to and meet the eligibility criteria for the Government’s Job Retention Scheme during any period of quarantine.

4. If an employee could work from home during quarantine can they be required to take annual leave/unpaid leave?

Even if an employee can work from home, the employer may be able to require the employee to take annual or unpaid leave during any period of quarantine if, but for the period of quarantine, the employee would have been at their place of work. Such an approach would, however, carry some real risk for an employer – particularly in circumstances where employees have demonstrated that they can work effectively remotely during lockdown. Even if the requirement is not a breach of the express terms of the contract, it might be a breach of the implied term of trust and confidence exposing employers to potential claims of constructive dismissal.

5. Can employees be required to cancel pre-booked holidays?

In some circumstances, an employer could potentially require an employee to cancel a pre-booked holiday but would normally be required to give at least the same amount of notice as the amount of holiday that the employee planned to take, for example an employee taking a two week period of annual leave must be given at least two weeks’ notice of the cancellation (regulation 15(2)(b) Working Time Regulations 1998). However, this would be relatively unusual and, given the level of interference in the employee’s personal life, may well be perceived as draconian – particularly in the absence of a compelling business reason for such cancellation. It could also amount to a breach of the implied term of trust and confidence, exposing employers to potential claims of constructive dismissal. In any event, employees may reasonably expect to be reimbursed for any losses suffered as a result of a cancelled holiday particularly as cancellation at the behest of an employer is highly unlikely to be covered by an insurance policy.

6. If an employee cancels holiday plans due to quarantine requirements, should s/he be permitted to rollover holiday pay into the following year?

As reported in our previous OnPoint, pursuant to the Working Time (Coronavirus) (Amendment) Regulations 2020 (the “Regulations”) workers are permitted to roll over holiday into the following holiday year if it was not "reasonably practicable" for them to take some or all of their leave as a result of the effects of coronavirus (including the effects on the worker, the employer or the wider economy or society). An employee who is required to cancel a holiday due to the requirement to quarantine on return may argue that they should be permitted to roll some holiday over into the following year because they cannot take their leave whilst quarantine measures are in place. Employers should consider how they will handle such a request and again ensure that all requests from employees in similar circumstances are handled consistently. If an employer wants to encourage employees to take annual leave in the current leave year, it should ensure that its approach to quarantine is consistent with that aim.

7. How should an employer treat an employee on furlough who is required to quarantine?

Employees who were due to be furloughed following a period of annual leave may argue that they should not be required to take additional leave (paid or unpaid) during any period of quarantine, as there would have been no expectation that they would attend the office. The Government Guidance on the Job Retention Scheme (“the Scheme”) provides that an employee should receive their usual holiday pay during a period of annual leave while on furlough. Accordingly, for any employees whose pay has been reduced to 80 per cent, it will potentially be more cost effective for an employer to furlough employees than to require them to take additional annual leave to cover any quarantine period. Again, however, employers should be wary of the risks arising from inconsistent treatment between staff in similar situations.

8. Can an employer reject a request to take annual leave if it will entail quarantine on return?

Employers may consider requiring employees to specify in an application to take annual leave whether any period of self-quarantine will be required on return. Provided that the employer approached similar cases on a consistent basis, an employer may well be entitled to reject requests for annual leave in such circumstances. It would, however, be prudent for such employers to warn employees not to book a holiday until their annual leave request has been approved.

9. Can employers impose sanctions on employees who cannot work due to quarantine restrictions?

This will depend on individual circumstances. If, for example, an employee knowingly contravened a workplace policy (e.g. not to travel to a destination requiring quarantine on return), disciplinary action may be appropriate. Dismissing an employee who cannot work due to quarantine restrictions (particularly in circumstances where the quarantine rules changed during the holiday) is likely to be unfair and disciplining such an employee likely to be a breach of the implied term of trust and confidence. The employer should also consider the message that taking disciplinary action sends to employees in circumstances where it should be encouraging employees to adhere to all Government Guidance in relation to coronavirus. A more reasonable and low risk approach would be to require employees to take paid or unpaid leave during a period of quarantine.

10. What steps should employers take now?

Employers should ensure, as a matter of priority, that employees understand the approach they will take during a period of quarantine following a trip abroad. This may involve issuing some form of notice or other communication or updating any existing annual leave policy. The aim should be to enable each employee to make an informed decision as to how they spend their annual leave. Aside from being fair to employees, having a clear line on such matters will also make it far more difficult for an employee to challenge their treatment (provided that such treatment is consistent with the employer’s warnings as to the consequences of employees being required to quarantine).

We would also like to thank Melissa Ayeltigah, Trainee Solicitor, for her contribution to this OnPoint.