17 August 2020

The UK changes quarantine rules… what does this mean for employees'?

1. Do our employees have to tell us if they are quarantining?

Anyone who is asked to quarantine must comply unless they are exempted from the rules. This means they must return to their home immediately after entering the UK and remain there for 14 days. They cannot go to work, shop for food or go outside for exercise.

Anyone who doesn't report for work must follow their employer's absence reporting procedure. Their absence should be recorded as ‘authorised' unless they are actually sick.

2. Can we ask staff to continue to work during quarantine?

That will depend on whether they can work from home and you are happy for them to do so. If they can't work from home, you must not ask them to return to their workplace and must immediately send them home if they turn up. Anyone who doesn't self-isolate will commit a criminal offence and can be fined £1,000.

3. Do we have to pay staff who are self-isolating?

In most cases, if someone cannot return to work and they can't work from home, they are not entitled to be paid.

Anyone who self-quarantines and does not have coronavirus symptoms is not entitled to statutory sick pay. This will leave many employees, employers to consider:

• paying full pay
• paying the equivalent rate of SSP (this cannot be claimed back from the SSP Rebate Scheme)
• paying contractual sick pay
• agreeing further annual leave
• enforcing annual leave by giving the required amount of notice (double the length of the holiday being enforced)
• a period of unpaid leave
• a period of furlough

4. Can we tell staff not to go abroad on holiday?

You can't dictate what your employees do in their own time, much less tell them where they can go on holiday. But, you can discourage them from going on holiday abroad by making it clear they will have to follow any quarantine advice in place and won't be paid during this time.

Bear in mind though, that some people will have booked their holidays pre-lockdown and may decide to go if they can, even if they have to quarantine afterwards.

5. Can we cancel holiday leave we've already authorised to prevent staff travelling abroad?

In most cases, yes - but there are some risks attached. If the contract of employment or your holiday policy sets out how to cancel holiday, you must follow that. If there are no express provisions, the Working Time Regulations provide a mechanism for employers to cancel leave. Under Regulation 15(2)(b) you must give as much notice as the leave you want to cancel. Therefore, if you want to cancel two weeks' leave you have to give two weeks' written notice. You'll need to explain to your staff why you have cancelled their holiday and tell them when and how they can re-book.

Cancelling holiday at short notice is likely to be unpopular. If workers have made travel or other plans they may ask you to compensate them for any cancellation charges they incur. They could also argue that you are acting unreasonably and are in breach of the implied term of mutual trust and confidence, which gives them the right to resign and claim constructive dismissal (they'll need two years' service).

6. What do we need to tell staff in advance of them going on holiday?

It's helpful to set out your expectations in a policy or employee update so that your staff understand what might happen if they holiday abroad and are asked to self-isolate afterwards. This should cover: notifying you if they have travelled abroad, reporting their absence (and how it will be recorded on their records), whether they will be paid during quarantine and, if not, whether they can take outstanding paid holiday.

7. Can we dismiss someone if they can't return to work because they are in quarantine?

Employees don't have specific protection from being dismissed in these circumstances, but if they have two years' service, they may be able to claim unfair dismissal. You'd have to show you had a fair reason for dismissal and went through a fair procedure - including allowing an appeal.

Not turning up for work is, potentially, a fair reason but most employment judges are going to be sympathetic to anyone who has returned to the UK to find that quarantine rules were imposed during their holiday and they have remained at home in line with Government advice.

The situation may be different if an employee chose to holiday in a country which already has quarantine rules imposed - such as the US - but you'd still have to show the reason for your dismissal was within the 'reasonable range of responses'. That will depend on the individual circumstances.