Employer Guides: Holidays, quarantines and the workplace

18th August 2020

The “travel corridor” door to Spain slammed first. France, Holland and Malta are the latest casualties and the axe is now hovering over Greece, Croatia and Turkey. For many of us, a summer holiday abroad was starting to look like a possibility again. However, with the government removing ever more countries from its travel corridor list, many will be wondering if the appeal of blissful sunshine will be worth the potential 14 day quarantine hangover that could follow if they cannot WFH[1].

Below, we answer some frequently asked questions on the implications of quarantine on jobs where the employee’s physical presence in the workplace is required.

 

Are employees who are quarantining entitled to pay if they cannot work from home?

  • If an employee is sick while quarantining, then they are entitled to their usual sick leave and pay entitlements (including SSP).

 

  • If they are not, then the position is less clear. Arguably they are not entitled to pay and the quarantine period may be treated as unpaid leave (although employers should consider if this is reasonable if the employee was away for business purposes).

 

  • However, an employee who embarked on a holiday to a non-quarantine country, which was removed from the travel corridor list whilst they were away, may argue that the government restrictions mean their inability to work is involuntary and an external, unavoidable, barrier and they should therefore be entitled to pay. There is some precedent to support this position[1] and employers should seek advice before reducing or removing pay. However, if the overseas trip was booked in the knowledge that there would be a quarantine at the end of it, it is difficult to argue that the inability to work is caused by an external, unavoidable factor over which they had no control.

 

  • If the employee is eligible to be furloughed, the employer may consider whether that is appropriate in this instance, subject to agreed terms.

 

  • Employees may also opt to take holiday as an alternative to unpaid leave.

 

  • Employers may opt to implement their own pay terms in the circumstances.

 

Can an employer stop its employees from travelling to countries that are not on the “travel corridor” list or are under threat of being added?

  • Employers could consider instructing employees not to travel to areas where the government advice is to avoid travel. However it is questionable whether this could be regarded as a reasonable management instruction given that it dictates what an employee can do with their leisure time, rather than how to do their job. Accordingly enforcing this may be difficult.

 

  • Under most employment contracts and holiday policies, employers have the discretion to reject a holiday leave request. However employers may not know where their employee intends to travel on holiday (or quarantine rules may not even have been in place in relation to that country) at the time of receiving the request.

 

  • If an employer has already approved an employee’s holiday, but now knows that this holiday would or may necessitate that the employee quarantines on their return, the employer can, under the Working Time Regulations, cancel that leave, provided they give at least as much notice of the cancellation as the length of the leave they are seeking to cancel. Before exercising this right, contracts and holiday policies should be checked to make sure they do not contradict this.

 

  • There are risks associated with holiday cancellations however, as an employee may argue that their employer should bear the associated costs, or even resign, arguing the cancellation constituted a breach of the implied term of mutual trust and confidence and therefore that they have been constructively dismissed. It is important that if employers wish to cancel holiday leave, they keep a record of their legitimate business reasons for doing so (for instance, the operational effect that the employee being away from work for an additional two weeks would have) to evidence that they have acted reasonably in the circumstances.

 

  • As an alternative to cancellation, employers could implement a new holiday policy to provide that employees who knowingly travel to countries that are not on the travel corridor list and consequently have to quarantine, may be disciplined for doing so, in the hope that such a policy would have a deterrent effect. Such policies can also highlight the fact that any employees that are required to quarantine (and of course, are unable to WFH remotely during this period) may not be paid.

 

If an employee does travel to a country that is not on the “travel corridor” list, consequently has to quarantine, can we treat this as a disciplinary issue?

  • Importantly, employers must remember that if an employee were to break the quarantine rules, they would be committing a criminal offence and therefore should not put any pressure on employees to return to work if they are required to quarantine.

 

  • If an employer has a clear policy which prohibits employees from travelling to such countries and the employee has knowingly breached this, this could be treated as a disciplinary issue. However, employees that are not British nationals might argue that a policy forbidding foreign travel is indirectly discriminatory on the grounds of nationality, as it disadvantages them and those who share their protected characteristic. Indirect discrimination can be justified if it is a legitimate means of a achieving a proportionate aim, so again, employers should keep a record of their legitimate business reasons for implementing such policies, to demonstrate that they outweigh any discriminatory effect on the employee.

 

  • If the employee is not in breach of such a policy, an employer is unlikely to be able to discipline them, but is not required to pay them while they are quarantining if they cannot WFH.

 

The government has published guidance on self-isolating after returning to the UK.  It is available here: https://www.gov.uk/guidance/self-isolating-after-returning-to-the-uk-your-employment-rights

 

This article is based on information available on 18 August 2020. It is commentary only and should not be relied upon as legal advice. This topic is complex and employers are urged to seek appropriate advice in each instance.

If you would like more information on the content of this article or employment law generally, please contact Melanie Rowe on 07854 029922 or by email at melanie.rowe@murrellassociates.co.uk

 

[1] Work From Home (in case you’ve been on holiday to Mars as well).

[2] In North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ 387 (19 March 2019) the Court of Appeal held that, if the employee is ready and willing, and the inability to work is the result of a third-party decision or external constraint, any pay deduction may be unlawful depending on the circumstances.