Travel Quarantine Restrictions and the Implications for UK Employers

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29 July 2020 | Updated 05 August 2020

New quarantine restrictions on people returning from Spain may have implications for UK employers.

On Sunday 26 July 2020, Spain was removed from the travel corridor exemption list that allowed UK citizens to not necessarily have to self-isolate when arriving in England. Therefore if you arrive in England from Spain, you will need to self-isolate. In England, if you do not self-isolate, you can be fined £1,000.

It remains to be seen whether other European countries might be added to the quarantine list, depending on signs of a second wave of coronavirus. 

ThisWeekinFM spoke to Nick Elwell-Sutton, Employment Partner at Clyde & Co, to find out more about where employers stand when it comes to managing employee expectations and planning for absences relating to these new rules.

Elwell-Sutton is a member of the Employment Lawyers Association and the International Bar Association. His practice encompasses all aspects of contentious and transactional employment law.  

 

“Whether you take the view that the revocation of the Spain/UK air bridge is ‘too little, too late’ or an unnecessary knee-jerk reaction, for those affected by the legal requirement to quarantine upon returning to the UK, it is of little comfort.” 

–Nick Elwell-Sutton

Employment Partner, Clyde & Co

 

Setting Expectations in Advance

 

Elwell-Sutton’s general advice is that, whilst an employer cannot limit what an employee does in their holiday time, setting a level of expectation in advance around what would occur should the worst happen.

He emphasises the fact that breaching the 14-day quarantine period is a criminal offence, and that employers should refuse to allow any persons known to be self-isolating to attend the workplace.

“Whether you take the view that the revocation of the Spain/UK air bridge is ‘too little, too late’ or an unnecessary knee-jerk reaction, for those affected by the legal requirement to quarantine upon returning to the UK, it is of little comfort,” he said.

He supposes that for those quarantining without symptoms,  some will work from home with no interference, but this is not always feasible for every employee.

 

What are the Options if the Employee Can’t Work From Home?

 

“The starting point is that the employee must be ready, willing and able to work for the right to pay under the employment contract which, in practical terms, means they must be able to attend the workplace which is not possible if they are under quarantine,” Elwell-Sutton explains.

“There is case law that says if the inability to work results from an ‘unavoidable impediment’ that pay may still be due.

In principle, Elwell-Sutton told us, there is case law that states if the inability to work results from an “unavoidable impediment” that pay may still be due. However, whether voluntary travel to a country where the air bridge might be revoked could be considered truly unavoidable is another issue altogether.

“A better analysis would be that the employee took a gamble and lost. It also seems an unattractive argument to ask the employer to pay when it is not in any way at fault” he said.   

 

Unpaid Leave Against Holiday Entitlement

 

One option is that employer and employee would agree a period of unpaid leave for the quarantine period, or use it against any remaining holiday entitlement so it is paid at the normal rate.  Although Elwell-Sutton admits both of these options are likely to be unpopular with the employee concerned:

“In the absence of any coronavirus symptoms such as to trigger the deemed incapacity provisions if isolating during quarantine there would be no entitlement to statutory sick pay and the employment contract would almost certainly not cover it as paid sick leave.”

 

Employers Urged to “Do the Right Thing”

 

It may be that the answer lies within the Coronavirus Job Retention Scheme Treasury Direction (Furlough scheme) at paragraph 2.2. This states:

"Integral to the purpose of the CJRS…is that the amounts paid to an employer pursuant to a CJRS claim are used by the employer to continue the employment of employees in respect of whom the CJRS claim is made whose employment activities have been adversely affected by the coronavirus and coronavirus diseases or the measures taken to prevent or limit its further transmission.”

Elwell-Sutton adds, “On the face of it, the quarantine requirement is a measure taken to prevent further transmission and so if the individual had previously qualified for, and had been furloughed, they could be furloughed again for the quarantine period.

“While this is not at no costs to the employer it would seem a reasonable compromise balancing the interests of both the employer and employee and consistent with the government request for employers to ‘do the right thing.’”

Picture: A photograph of a commercial aeroplane on a runway

Article written by Ella Tansley | Published 29 July 2020

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