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05 August 2020
What pay is an employee entitled to?
Can an employee take extra holiday?
Can employers stop employees from travelling to Spain?
What if an employee turns up to work?
Do employees have a right to work from home?
What if an employee is trapped in Spain?
From 8 June 2020 anyone arriving in the United Kingdom has had to self-isolate for 14 days, unless coming from a country included on the 'travel corridors' list. With the exception of Portugal, the list included all popular European holiday destinations – until now. On 25 July 2020 the government suddenly announced that Spain would be removed from this list, and that anyone returning to the United Kingdom from Spain (including the islands) from midnight on 25 July 2020 would need to self-isolate for two weeks. The Foreign and Commonwealth Office (FCO) is also advising against all but essential travel to all of Spain (having initially limited this to mainland Spain).
It is unlawful to break the self-isolation rules. A failure to comply in England, Wales or Northern Ireland could result in a significant fine of £1,000. In Scotland, there is a £480 spot fine, which increases to £5,000 if the case goes to court.(1)
The original announcement about the requirement to self-isolate on return from overseas travel was made on 22 May 2020, giving travellers more than two weeks' notice of the change. In contrast, the announcement about travel from Spain provided less than one day's notice. Many employees will already have arrived in Spain for their holidays, having travelled when the country was included in the travel corridors list. Others will have booked holidays that are coming up shortly. Although the FCO has advised against all but essential travel to mainland Spain, which means that many flights and holidays will already have been cancelled, the same advice does not apply to the Spanish islands.
Foreign Secretary Dominic Raab has said that "you cannot be penalised in this country lawfully for following the rules and the law that's in place" and that self-isolating employees "ought to be treated sympathetically" by employers. But what are employers actually required to do if an employee cannot work for 14 days after returning from Spain?
If employees can work from home, they can work and be paid as usual. However, employees cannot attend the workplace because it is a criminal offence to fail to self-isolate. This means that there is no legal requirement to pay an employee who cannot work from home.
This situation is unlikely to be covered by an employer's enhanced sick pay policy or any other provisions on pay. There is also no entitlement to statutory sick pay – unlike with compulsory self-isolation under rules on households with symptoms and the test and trace system, statutory sick pay has not been extended to returning travellers.
If employees must self-isolate after a period of work travel to Spain, it would be reasonable to pay for this period as the employee's situation results from the requirements of their job.
If the employee has sufficient annual leave remaining, they may wish to add this on to the end of their original holiday in order to be paid in full for the self-isolation period. Their employer could agree, and this may be a practical solution for employees who cannot work from home.
This would result in employees having extended periods away from work, so employers may wish to distinguish between employees who are caught out by the rule change and have already travelled and those who choose to travel later despite the requirement to self-isolate on their return.
Employers can revoke pre-authorised leave by providing notice of the same number of days as the holiday that the employee wanted to take (eg, five days' notice to cancel five days' leave). However, employers should proceed with caution before cancelling pre-booked annual leave to prevent overseas travel. Doing so without a proper business reason and appropriate compensation could be a breach of the implied duty of trust and confidence (ie, the implied contractual duty not to unreasonably destroy or damage the relationship of trust and confidence between employer and employee).
Where an employee is planning to travel to Spain in the near future and their employer cannot manage workflow without them for the length of their proposed holiday plus the 14-day isolation period, the employer might be able to refuse (or revoke) holiday approval on those grounds, as this provides a clear business reason. A recent amendment to the Working Time Regulations allows employees to carry over holiday for the next two years if it has not been reasonably practicable to take it in the current holiday year due to the effects of COVID-19. While it is unclear whether the 14-day self-isolation period would in itself make it not reasonably practicable to take holiday, the need for workforce cover is listed as a relevant factor in the government's guidance on holiday entitlement and pay during the COVID-19 pandemic.
Not everyone who plans to travel abroad will be doing so to enjoy a holiday. There may be specific circumstances where an employee is required to travel (eg, to visit a sick relative or attend a funeral), which could be treated as exceptions. It is also important to be clear and consistent in order to avoid grievances or complaints about discrimination.
It is a criminal offence to attend work during the compulsory self-isolation period and any employee who attempts to do so should be sent home immediately.
There is no specific legal requirement on employers to check where employees have travelled during annual leave. However, general health and safety duties mean that employers should enforce the self-isolation rules in order to protect others in the workplace if they know or suspect that an employee has just returned from Spain. It may be advisable to ask all employees returning to the workplace after annual leave to confirm that they have not returned from Spain (or another country that is not on the travel corridors list) or are otherwise required to self-isolate for any reason.
There are many jobs which simply cannot be done from home, which means that this is not an option for some travellers. As lockdown has eased, many employees who could work from home temporarily have started to return to the workplace. A self-isolating employee might ask to work from home while colleagues are back in the office. Although employees have no right to work from home and employers can specify an employee's place of work, it would generally be reasonable to allow home working for 14 days if the employee's job can be done effectively from home – particularly if remote working was allowed during full lockdown.
Some travellers caught up in this situation may find that flights have been cancelled and that they are trapped overseas for an extended period. It may be possible for an employee in this situation to work remotely. If not, they would have no entitlement to full pay or sick pay (unless actually unwell), leaving the options of additional holiday or unpaid leave. If the travel was work related, the employer's policy might provide for pay – in any event, it would be reasonable to continue to pay an employee who is trapped abroad after travelling for work.
Other countries will likely be removed from the travel corridors list if infections spike elsewhere, as has been widely predicted. The Spanish situation has caused particular problems because the rules have changed in the middle of summer holiday season. More short-notice rule changes are expected over the coming months.
For further information on this topic please contact James Davies or Helen Coombes at Lewis Silkin by telephone (+44 20 7074 8000) or email (firstname.lastname@example.org or email@example.com). The Lewis Silkin website can be accessed at www.lewissilkin.com.
(1) For further information on the relevant legal issues for employers, please see "Test, trace and travel – new self-isolation rules and employment".
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