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Much mention has been made of the fact that the government has introduced a new, immediate self-isolation period for all travellers coming into the UK from Spain.
This will naturally have an impact on employers who will now have to carefully manage the self-isolation period for any employees they have coming back from travel to Spain over the coming months.
Our experts have put together the key considerations every employer needs to make when it comes to travel-related quarantine in their business.
The Foreign and Commonwealth Office currently advises against all but essential international travel, but this is subject to certain exemptions (the ‘travel corridors’). However these exemptions are kept under constant review and the government warns that control measures may be brought in with little notice (as happened with Spain). Travel guidance should be checked for each devolved administration. If a country is not on the exempted list, individuals arriving into the UK from that country have to serve a 14 day self-isolation period immediately upon entry. A list of people who do not need to self-isolate due to travel can be found here.
This period of absence is unpaid. Unlike other types of self-isolation, travel-related self-isolation is not treated as a period of incapacity for SSP purposes and therefore SSP is not payable. However, if they became ill or develop COVID symptoms during quarantine, SSP would become payable. The employer could agree to the employee taking some of the quarantine period as holiday but should be mindful of the employee’s general wellbeing. For example, if the holiday year runs from 1 April to 31 March, and the employee returns from a two week holiday and requests a further two week holiday to cover their quarantine period, this may leave them with very little holiday left to take for the significant amount of time remaining in the holiday year. From a wellbeing perspective, this may cause problems later down the line.
Employers can instruct employees when to take holiday as long as they give at least twice as much notice as the holiday period they are requiring them to take. For example, an employer who wants an employee to take a week’s holiday must give at least two weeks’ notice of this. However, there are several reasons why this might not be advisable. Firstly, the potential impact on the employee’s wellbeing if there is a lengthy period of holiday year still to run and it would leave them with little opportunity to take leave. Secondly, it may be detrimental to employee engagement. Finally, there is a question mark over how reasonable tribunals would view this request given the tight restrictions imposed upon those serving quarantine (they are not even allowed to take exercise outside the home). The importance of considering restrictions on employees when requiring them to take holiday was flagged in the HMRC guidance on the Job Retention Scheme which cautions that if employers are considering requiring employees to take holiday during furlough, they should “consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday.”
Travel related periods of self-isolation should not be treated as unauthorised absence. Where quarantine is necessary, employees are under a legal obligation to comply and therefore it would be entirely inappropriate for the employer to require an employee to come into work during this period (they can, of course, continue to work from home where this is possible).
Employers have the right to cancel holidays by giving at least the same amount of notice to the employee as the length of the holiday itself. For example, if the employee is due to go on holiday for two weeks, their employer must give notice of cancellation at least 2 weeks before the start of the holiday. However, the decision to cancel a holiday could be seen as unreasonable and could potentially be considered a breach of trust and confidence which could give rise to a constructive dismissal claim. When assessing the reasonableness of the decision to cancel a holiday, one would have to weigh up the impact on the individual if the holiday is cancelled, against the impact on the business if the employee is required to self-isolate for 14 days (bearing in mind that the requirements to quarantine are open to change at any time). The impacts on the individual could include:
The best approach is to ensure employees are aware of the potential implications of travelling abroad – particularly the unreliability of travel corridors and the fact that quarantine periods would be unpaid. This in itself may discourage employees from travelling abroad. If the business wants to introduce a policy on employee’s travel abroad – either instructing employees not to do so or to only do so with their manager’s prior written authorisation, this will have to be communicated clearly to all employees. However, there would have to be excellent business reasons to justify this approach as usually, it is entirely up to employees how they use their holidays. Even requiring employees to get written consent before booking is fraught with the risk that managers will handle these decisions inconsistently, potentially giving rise to allegations of discrimination or unfairness. It would be reasonable to ask employees to inform you if they have booked travel abroad, and where, as this information is necessary to understand the potential impact of quarantine on the business if the employee is unable to work from home.
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If you’re unsure on how to manage employees who are travelling during the pandemic, and the best approach for your business to take, Citation is only ever a phone call away.
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