Ask the Lawyer: Quarantine Advice for Employers (3rd August 2020)

posted by KeithDaniel

With August 2020 already underway and many booking holidays abroad, we have received a number of queries from employers concerning the 14 day quarantine rules which affect employees returning to work.

We set out some frequently asked questions below.

1 - Does an employee need to self-isolate if they return from overseas?

The Government announced on 22nd May 2020 that most people returning to the UK from overseas from 8th June 2020 would have to self-isolate/quarantine for 14 days. However, on 10th July 2020, the rules changed in England, Wales and Northern Ireland as the self-isolation requirement was removed for those individuals returning to the UK from one of the “travel corridor countries” - Guidance for England OR Guidance for Wales.

Therefore, if an employee returns to the UK from one of the countries and territories listed by the Government as being exempt then they will not need to self-isolate. However, the Government have advised that countries and territories can be taken off or added to the exempt list at any time without any notice. Therefore, employees may unexpectedly need to quarantine/self-isolate with little or no notice.

Please note that there are a small proportion of people returning to the UK who will not be required to self-isolate – for more information please click here.

2 - If an employee needs to quarantine what pay are they entitled to?

If an employee can work from home during the 14 day quarantine period then they should be paid as normal. Although employees cannot force their employer to allow them to work from home, if they are able to do so then it would be unreasonable to refuse such a request.

Some employers may find it helpful to provide employees with a list of roles that are not suitable for home working so that employees planning to go abroad can plan their return in advance and consider their options with regards to taking unpaid leave or annual leave if they cannot work from home.

If an employee cannot work from home the position with regards to pay is not clear. As a result of the legal requirement to self-isolate, an employer could argue that as the employee is unable to work, the implied right to be paid does not apply and therefore the employee would effectively be on unpaid leave.

However, there is an argument that as the employee is subject to a legal requirement, their ability to work is not affected. This issue was addressed in a 2019 case (North West Anglia NHS Foundation Trust v Gregg) where the Court of Appeal held that if an employee is ready and willing to work but is unable to do so as a result of a third-party decision or external constraint, then any refusal to pay the employee their normal salary will be deemed unlawful, depending on the circumstances.

It currently remains unclear what position the Government and the courts will take and therefore in the meantime employees could attempt to argue that their inability to work is external and unavoidable and that they should therefore receive their full pay. However, having said this, if the employee booked a trip abroad with the knowledge that they would be required to self-isolate for 14 days upon their return, it may be difficult to succeed with the argument that they had no control over their inability to work.

Therefore, provided there is no contractual entitlement to be paid in this situation, many employers are taking the view that if an employee cannot work from home during the 14 day quarantine period then they can either take unpaid leave or paid annual leave (unless of course the employee is entitled to sick pay). If the employee does not wish to take annual leave then the employer can require the employee to take their statutory annual leave provided the employer provides two days’ notice for every day it requires the employee to take as annual leave.

3 - What if an employee becomes stranded overseas?

If an employee is unable to return to the UK because they have contracted COVID-19 and are either not permitted to travel or too unwell to do so, then the employee should receive either statutory sick pay or contractual sick pay (if provided). The employee can take annual leave if they would rather, but they cannot be forced to do so.

If the employee is unable to return to the UK because for example their flight has been cancelled then if the employee is able to work remotely then they should do so and they should receive their normal salary. However, if they cannot work remotely then they should be given the options of either taking a period of further annual leave or unpaid leave.

However, if the employee has travelled overseas for a work-related reason and is unable to return to the UK because they have contracted COVID-19 and are either not permitted to travel, or too unwell to do so, then they could be treated as being on sick leave with regards to pay. However, given the circumstances, some employers may choose to pay the employee their full pay.

Of course, the employer would also need to consider the additional expenses that the employee will incur with regards to accommodation, food and travel for instance and ensure that the employee is supported in making arrangements and reimbursed for the extra costs. In the event that the employee requires medical assistance, the employer should contact its business travel insurance provider to ensure that the employee can access any cover provided and the employer should also provide any other necessary assistance that the employee requires.

If the employee is unable to return to the UK because they cannot access transport as a result of lockdown restrictions either in the UK or overseas, they should receive their full pay where they have travelled for a work-related reason.

Please contact us if you would like more information about the issues raised in this article or any other aspect of employment law at 02920 345 511 or employment@berrysmith.com