With new quarantine rules in force, can employers exercise control over where an employee goes on holiday or whether they go on holiday at all?
With restrictions on travelling away from home expected to ease in the not too distant future, the prospect of being able to get away this Summer is perhaps now more than just a lockdown dream. But with that, new quarantine rules have come into force which could seriously impact on the ability of employees to attend for work after a holiday overseas. We have been asked by employers how they should respond to this risk. Can they exercise control over where an employee goes on holiday or whether they go on holiday at all? And how should absence from work be categorised if it is because of quarantine imposed after returning to the UK?
The new quarantine rules
People who come into the UK from anywhere other than Ireland, the Isle of Man and the Channel Islands are now required to quarantine themselves for 14 days under regulations which came into force on 8 June 2020. Those who live with the person in quarantine do not need to self-isolate unless they or the quarantined person develop symptoms of Covid-19.
The government has published new guidance on the quarantine rules which makes clear that non-UK citizens may be refused entry to the UK if they refuse to self-isolate and that fines can be levied for failing to self-isolate or to give accurate details of where you will be self-isolating.
There are some exceptions to these rules. These include people who live outside the UK but work in the UK and travel between their country of residence and the UK at least once a week, road haulage and freight workers, pilots and flight crew, Eurotunnel drivers and crew, seamen and masters, and postal workers transporting mail into and out of the UK. Also excepted are medical professionals who are travelling to the UK to help with the response to the virus.
Is quarantine a period of sick leave? And if not, what will the employee be paid?
If the employee who is in quarantine can work from home then they should do so and should be paid as normal. However, if they cannot work from home, the question arises as to what kind of leave they are taking and whether statutory or contractual sick pay will be payable.
There is no clear guidance on this point at the time of writing. Changes to the statutory sick pay (SSP) rules made previously mean that people will qualify for SSP (subject to eligibility) for periods when they are: self-isolating because they have symptoms of the virus; living with someone who has symptoms; self-isolating because they have been instructed to do so through the test and trace system; or shielding because they are in the extremely clinically vulnerable group. Someone who is under quarantine and does not fall into these categories would not currently be eligible for SSP. It has been reported that HMRC has given unofficial indications that it will not be changing the rules to allow those who have been abroad and are instructed to quarantine to receive SSP.
The contractual position will depend on the wording of the provision for sick pay in the contract of employment. Where sick pay would not be payable under the contract, employers may decide on a discretionary basis to pay contractual sick pay for periods of quarantine in order to encourage staff not to attend work. However, they may also decide that it would not be appropriate to extend any discretion to pay sick pay in circumstances where the employee travelled abroad voluntarily and could have avoided the consequent quarantine restrictions.
Alternatively, the quarantine period could be booked as a further period of annual leave, where entitlement allows, or taken as a period of agreed unpaid leave. If no agreement is made about the quarantine period, the additional absence may be unauthorised leave and lead to a disciplinary process (see below).
Can we stop our employees travelling abroad?
Employment contracts and holiday policies may enable employers to restrict employee holidays to some extent. For example, they will usually require employees to seek permission to take holiday and may allow employers to cancel holiday in certain circumstances. If the contract is silent on whether employers can cancel holiday, employers can do so as long as they provide notice. The notice must be as long as the length of the holiday, for example, a week's notice to cancel a week's leave. It is good practice for employers to bear the cost of holidays cancelled in this way, where these are not covered by the employee's insurance.
It is unlikely that current policies will allow employers to prohibit foreign travel. Indeed, there may be no mechanism in the policy for checking whether the employee intends to travel abroad. Employers who are particularly concerned about the impact of quarantine on the organisation might consider putting in place a new policy setting out clear expectations for staff.
Employers should follow their usual protocols for bringing in such policies. For example, employers should share the draft policy with staff for comment before it is finalised. Where relevant, employers should consult with trade unions or other employee representatives. Contractual policies should only be changed in agreement with employees or their representatives.
Could travelling abroad be a disciplinary issue?
Where employers have in place a clear policy or procedure for booking a foreign holiday under the current circumstances, and these rules are not complied with, this could be a disciplinary issue. It is, however, important to communicate with staff in advance so that expectations are clear and well understood.
Because it is a criminal offence for people to leave their homes during quarantine, employers should not put pressure on the employee to break quarantine and attend work. However, where the employee has failed to follow the rules on booking holiday, and that failure has led to an unauthorised absence from work, employers might choose to deal with this through their disciplinary procedure.
This will not be as clear cut perhaps where the employee has had the trip booked for some time and could not have been expected to know that quarantine would apply. In those circumstances, it may be advisable to come to an agreement with the employee to authorise the extended leave, or to cancel the annual leave and reimburse them for the costs of the trip not recovered through insurance.
The risks of cancelling or prohibiting holidays overseas
Employers who enforce their right to cancel holiday or threaten to invoke a disciplinary procedure if a holiday goes ahead, should only do so for good business reasons. This is because an employee could argue that their employer was in breach of the implied term of mutual trust and confidence by taking the decision and resign in consequence, bringing a constructive dismissal claim. The employer would then have to show that they had a reasonable and proper cause to act as they did. A written note of the specific financial and/or operational impact on the organisation of the employee being away from the workplace for an additional two-week period would be very helpful to defend such a claim.
Employees who are not British nationals and who travel abroad to see close family might argue that an employer policy forbidding foreign travel is indirectly discriminatory on the ground of nationality as it disadvantages them and those who share their protected characteristic. Indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim. Here, the employer would need to show that there were strong business reasons for the policy which outweighed the discriminatory impact on the employee.
Thinking ahead, consulting employees, and communicating clear expectations and business reasons for policy decisions should help to mitigate the risk of conflicts and claims, as employers and employees navigate their way through the next few months of challenge and uncertainty.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.