What Will Your Employees Bring Back from Spain?

By 30th July 2020 COVID 19

The newspaper headlines are currently awash with the surprise decision made by the UK Government over the weekend to remove Spain (including the Canaries and Balearic Islands) from the travel corridors exemption list as of midnight on 25th July 2020. This means that anyone returning from these countries must self-isolate for 14 days upon their return to the UK.

This change has undoubtedly caused outrage with a large amount of British individuals – both those who are currently abroad in such countries, and those due to go abroad in the near future. The biggest concern amongst such individuals is the impact such ruling will have on their employment.

From the perspective of an employee required to quarantine for 14 days, they will only be able to work if it is possible for them to work from home. The ongoing pandemic has seen a significant influx in employees being able to work from home, but it has also become apparent that some forms of employment simply cannot be conducted from home.

In the event of an employee not being able to work from home during their quarantine period, how can their employer manage this?

Firstly, it is important to note that the 14 day quarantine period is not currently eligible for SSP and it is a criminal offence if an individual breaches the quarantine provisions, with the penalty for failing to comply being £1,000 (or £480 in Scotland).

If an employee has been abroad for business purposes and are required to quarantine upon their return, it would be recommended for the business to pay them in full during quarantine as they were overseas at the behest of the employer, and should not therefore be penalised. Failure to do so could result in a claim for constructive dismissal.

If the employee was not abroad on business, an employer could allow them to use annual leave for this period of time, however this would obviously be subject to both parties’ agreement and the employee having a sufficient amount of annual leave remaining. Alternatively, the employer could look to grant the employee unpaid leave for their period of absence.

One other option an employer could consider is placing those employees on to the furlough scheme for the quarantine period – obviously if such employees have previously been enlisted onto the scheme. However, we would advise caution before implementing this suggestion as it is not yet clear whether it is deemed acceptable to furlough employees strictly on the basis of them having to quarantine.

Can an employer prevent an employee from going abroad on holiday?

An employer can retract consent for holiday leave by giving an employee sufficient notice, with the legal requirement being at least the same amount of days as the employee is wishing to take, so for example, 5 days’ notice to cancel 5 days’ holiday.

However, employers should exercise caution if considering this – aside from cancelling holiday will undoubtedly will be unpopular and may damage employee relations, if the employee has incurred costs for their holiday e.g. flights, hotels etc., they may request the employer compensates them for the cancellation charges. Also, if an employer unreasonably cancels or disrupts holidays in this manner, an employee may consider that the employer has breached the implied term of mutual trust and confidence and attempt to claim constructive dismissal.

Given that a number of travel operators are cancelling flights to affected areas and refunding those who have booked holidays, it is hoped that this will assist matters.

Can an employee be dismissed if they cannot work due to them having to quarantine?

As it currently stands, there is no specific protection preventing employees with less than 2 years’ from being dismissed on such basis, however it is important to consider if such an employee has only hone away due to an issue related to a protected characteristic, for example to celebrate a religious festival.

It is important to note that Foreign Secretary, Dominic Raab, recently stated that employees cannot be dismissed or penalised if they are required to quarantine for 2 weeks. This is currently not the case in line with the above paragraph, however this could signal an intention for Government to make such changes to the current legal situation.

Employees with at least two years’ service could claim unfair dismissal if the only reason for their dismissal was due to the change in government guidelines whilst they were abroad.

HCHR

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