Summer Holidays and Self-Isolation
COVID-19 has impacted almost every facet of our lives, and our annual escape to the sunshine has not remained unscathed. Concerned about the practicalities of travelling abroad mid-pandemic, many have foregone their usual international trips for a break closer to home. Indeed, this writer has reluctantly swapped the northeast coast of Spain for south-east England. #BerkshirenotBarcelona is certainly an Instagram hashtag indicative of 2020.
For those who have braved the trip across the Channel and beyond, the constant possibility of post-holiday quarantining hangs heavily over their heads. With rates of infections fluctuating on a daily basis, holidaymakers live out each day of their trip with the trepidation that a spike in the R rate at their destination will result in Government-enforced isolation on their return. This has certainly been the case most recently for Brits holidaying in France, with the Government's latest round of quarantine measures causing a mass race back to our shores before the clock struck 4am on Saturday 15 August.
Some will, by judgement or otherwise, have stayed in France to see out the remainder of their holiday. Others bound for different destinations may head off in the full knowledge that they will be expected to quarantine for 14 days on their return. But how does this play out in an employment context, and where do employers stand?
Last Friday (14 August 2020), the Government published guidance entitled "Self-isolating after returning to the UK: your employment rights". Whilst aimed at employees, rather than employers, it provides a useful roadmap of the options available in respect of quarantining employees.
In the know or caught unawares?
It goes without saying that those employees travelling to countries which are not on the 'travel corridor exempt list' prior to their departure should be making proactive efforts to speak with their employer well in advance about plans for working on their return. That being said, an employer will also do well to keep an up to date list of the dates and destinations of all employees' annual leave for the next six months minimum, and monitor the travel corridor exempt list, so that preparations for business continuity can be made well in advance, if necessary.
In situations where the prospect of quarantining is known in advance, employers should have the opportunity to discuss potential options with the employee and come to an agreement as to the best course of action. Possibilities suggested by the guidance are as follows:
Working from Home
If the employee's work is able to be carried out remotely, this is the most obvious solution to the quarantining problem. For many businesses, a large proportion of their workforce may continue to work from home on a routine basis until the autumn, or even into 2021 and so, in this situation, the fact that an employee is required to quarantine will make little difference to business continuity.
For sectors/roles which will find difficulty in operating remotely, the following options may be more viable.
Taking annual leave
An employee may baulk at taking a further two weeks out of their annual leave entitlement when they are likely to have just returned from a two-week break but, if the employee is unable to work from home, then this provides an option which ensures that they will continue to be paid during their quarantine period.
In the absence of the employee's agreement to the above, remember that employers can direct that employees take annual leave at a particular time, but must provide notice which is twice the length of the proposed period of annual leave. In quarantining terms, this means that employers would only be able to utilise this option if they provided one month's notice of the employee's obligation to take annual leave during their quarantine period.
Taking unpaid leave
Whilst not explicitly referenced in the guidance, this is a further alternative. It may be appropriate where an employee has no annual leave left to utilise, or would prefer not to use it during their quarantine period.
Unlike in circumstances where an employee develops symptoms of COVID-19, or (broadly) has been in contact with someone who has COVID-19 or has developed symptoms, there is no entitlement to Statutory Sick Pay for those employees self-isolating after a holiday to a non-exempt country.
The guidance provides little help in respect of those, such as the current holidaymakers in France, who are out of the country when a quarantine is announced. Simply, it suggests that "employees should talk to their employer as soon as possible to discuss options". There is no reason why the options above cannot be utilised in this situation, as with those whose quarantine is known before they travel. However, the lack of preparation time might cause practical difficulties in finding last-minute cover for those employees who cannot work from home.
The guidance mentions the possibility of dismissal in situations where employees are forced to self-isolate following a holiday, but stresses that this should be a 'last resort' and posits that 'employers who dismiss an employee because they have had to self-isolate following travel abroad may be liable for unfair dismissal'.
It is important to remember, as with all of the Government's guidance on COVID-19, that it is subject to, and is not a replacement for, good old-fashioned law. It is likely that, with the fluctuating R rate across the globe, employers are likely to see their fair share of "unexpected" quarantined employees in the weeks and months to come. Whilst this will inevitably cause frustrations and difficulties from a business point of view, any disciplinary or dismissal action taken against an employee for having to self-isolate post-holiday is likely to be risky, particularly in respect of those employees who have over two years' service and have accrued unfair dismissal rights. COVID-related complaints have yet to find their way to the Employment Tribunal hearing room, and it is true that this is a phenomenon entirely untested by the courts. However, compliance with public health guidance will be something which Judges will obviously hold in high regard and, as a result, they are unlikely to endorse the penalisation of employees for following it.
Expect the Unexpected
In 2020, where unpredictability reigns, you can only plan so far – but do the best you can.
Devise a policy outlining the arrangements for employees who are required to self-isolate on return from holiday. The specifics may be different depending on the nature of the role, or seniority, but create a set of principles and disseminate them to the workforce, outlining the expectations and/or options for employees who will need to quarantine. Keep a track of employees' holiday destinations to give an idea of possible absences. Plan ahead – give larger, time-sensitive projects to employees who are not taking annual leave in the immediate future, in case of unexpected quarantine requirements.
And wherever your holiday takes you this year; the UK or abroad, Berkshire or Barcelona…enjoy and stay safe.
This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Rachael Lloyd to discuss any issues you are facing.