Since 8 June, individuals arriving in the in the UK have been required to complete a contact form and to self-isolate for a 14 day quarantine period, although the requirement to self-isolate was removed for individuals arriving from an exempt country from 10 July. Spain was initially on the list of exempt countries but has been removed with effect from 26 July, so those returning from Spain are now required to self-isolate for 14 days. We examine what this change means for employers.
Can an employee returning from Spain come into work?
No, an individual returning from Spain cannot come into the workplace and must self-isolate for a period of 14 days unless an exception applies. However, if an employee can work from home, then they can continue to work from home during the quarantine period and should be paid their normal pay. (At the time of writing, the quarantine requirement applies to both mainland Spain and the Spanish islands, although the UK Government is in talks with the Spanish Government about the possibility of removing it again for the Balearic and Canary Islands.)
There are some specific exceptions to the quarantine requirements which apply where an individual is travelling from a non-exempt country. For example, road haulage and freight workers, some workers engaged in emergency works relating to certain essential services and certain workers with specialist technical skills where those skills are essential to ensure the continued production and supply of goods are not required to self-isolate on their return to the UK. For more information on these exceptions, see our FAQs on ‘Managing employees during the pandemic’ and the applicable Government guidance.
Are employees currently in Spain entitled to SSP or any other pay during quarantine?
The Government’s guidance on SSP makes clear that employees cannot get SSP if they are self-isolating after entering or returning to the UK and they do not need to self-isolate for any other reason. (However, if they are self-isolating because they or someone in their household or support bubble has symptoms of Covid-19 or because they have been contacted by NHS test and trace and asked to self-isolate, they will be entitled to SSP.)
Since SSP is not payable, it is very unlikely that employees who are entitled to company sick pay for other types of self-isolation will be entitled to company sick pay during employee quarantine, unless your contract of employment or sick pay policy provides otherwise.
If the individual was otherwise working normally before they took their holiday, it would not be appropriate to operate a policy of placing them on furlough during their initial booked holiday. This is because the Government guidance on furlough warns that employees “should not be placed on furlough for a period simply because they are on holiday for that period.” We assume that this is intended to prevent employers from using the Coronavirus Job Retention Scheme where they do not otherwise need it, simply to subsidise the cost of employees’ holiday pay now that there is no minimum furlough period.
However, the Treasury Direction establishing the Scheme refers to the purpose of the Scheme as being to continue the employment of employees whose employment activities have been adversely affected by Covid-19 or the measures taken to prevent or limit its transmission. Given this, we think there may be a potential argument that employers could place employees on furlough to cover a period of quarantine following their return from overseas travel, provided they are eligible and the employer does not exceed the maximum number of employees it can claim for in a claim period. We have asked Government to clarify the position as – if furlough is available – it seems surprising that they would not have mentioned it as an option in view of the amount of debate the reintroduction of quarantine requirements on travellers returning from Spain has generated in the media.
To facilitate the taking of quarantine leave if furlough is not an option, you could provide that employees must book additional holiday, if they have enough left in the holiday year, to cover this extra time off. Otherwise, you could require employees to take unpaid leave to cover the quarantine period.
However, some employers may choose instead to offer some pay to employees to avoid employees breaking quarantine and putting colleagues at risk and/or to help employees manage the unexpected loss of salary that they would otherwise suffer as a consequence of travelling to Spain. It would be up to the employer to choose whether to do this and the amount it is willing to pay. For example, you could pay the equivalent of SSP, the equivalent of furlough pay, or any other amount. Alternatively, you could consider providing an ‘advance’ of wages to smooth out the loss of pay during the quarantine period. You should ensure that any decision you make is applied consistently and that its limits are clear. For example will the provision of pay during quarantine just apply for those employees who are currently in Spain and who travelled there before the removal of Spain from the quarantine list? Will it apply to other countries that are removed from the list of exempt countries in the future and, if so, will it be limited to employees who are already in those countries at the time their removal from the list is announced, etc.?
You should also consider how you will communicate with employees who are currently on holiday in Spain. Consider emailing or texting them or otherwise communicating your expectations about quarantine and the status of the leave before they are due to return to work. Given the importance of ensuring that employees comply with quarantine requirements, you may wish to inform them that attending the workplace during their quarantine period will be treated as gross misconduct.
What happens at the end of the quarantine period?
If an employee has complied with quarantine requirements, then unless they have developed Covid-19 symptoms or are otherwise required to self-isolate under another aspect of the Government guidance, from a health and safety perspective it should be safe for you to allow them to re-enter the workplace at the end of the quarantine period despite their travel to a non-exempt country. However, you may wish to treat such employees in the same way as employees who have self-isolated for other reasons, holding a telephone return to work interview with them before they come back into the workplace to check that neither they nor anyone in their household or support bubbles have developed symptoms of Covid-19.
What about employees who have booked holidays to Spain but haven’t yet travelled?
We do not recommend that you instruct employees not to make personal trips overseas. Instead, communicate clearly to employees what your policy on quarantine periods is. Be upfront with employees about whether you will require them to take holiday or unpaid leave to cover the quarantine period, or if you will place employees on furlough if this is available, or pay them in full or in part for the period of quarantine.
If an employee is not due to travel for a few weeks, and their extended absence due to quarantine would cause operational difficulties, you might wish to discuss with the employee the possibility of cancelling the holiday. However, if you do this, we recommend that you exercise caution because if you act unreasonably in cancelling an employee’s holiday plans there is a risk that this could amount to a breach of the implied duty of mutual trust and confidence.
What if an employee who had booked a holiday to Spain now wants to cancel their booked annual leave as their trip has been cancelled or they no longer wish to travel? There are no statutory rules governing whether an employee can cancel the annual leave that they have booked off work and most holiday policies do not cover this. Therefore, so long as you take a reasonable and consistent approach, you do not necessarily have to agree to an employee cancelling annual leave that they have booked if it would be helpful to you operationally if they were to take the leave as planned, even if their trip has been cancelled or they no longer wish to travel.
Unless your current holiday policy requires employees to notify you in advance of any overseas travel, you may be unaware that employees who are soon to take annual leave are in fact due to travel to Spain. In order to avoid unexpected issues at the end of an employee’s booked annual leave, you may wish to introduce a requirement for employees to inform you of any overseas travel plans now.
Good communication is key. You should be clear about your approach, listen to employees’ concerns and give employees as much notice as you can of any decisions or policy changes you make that may affect them.
Looking forwards to the rest of the summer holiday period
It is a good idea to implement a clear policy on how you will treat quarantine periods following holidays going forwards, including where a country is unexpectedly removed from the exempt list of countries. Our Checklist: Deciding your policy for managing employee absence due to quarantine after overseas travel sets out some issues to consider, such as whether your approach will be different for a second or subsequent period of quarantine and what information you require employees to give to you about their travel plans (see the ‘How we can help’ section below for details of how to access the Checklist).
At the minimum, you should require individuals to inform you if they need to quarantine, and make clear that if they come to work in breach of quarantine rules this will be considered gross misconduct. You should also consider implementing return to work interviews by phone at the end of quarantine, as for other types of self-isolation.
For personal overseas travel that is arranged to a country that is not on the exempt list when booked, and after you have communicated your approach to the quarantine period, you could also provide that if an employee has not agreed with you before they travel overseas that they can be absent for the quarantine period, you can treat the absence as unauthorised and take disciplinary action. However, it would not be appropriate to do this if a country is removed from the exempt list after an employee has begun their visit there.
Knowing what absence is permitted, the status of that absence and whether or how much they will be paid may influence an employee’s behaviour when they consider where they wish to travel for their holidays, e.g. it could dissuade someone from booking a long weekend trip overseas.
How we can help
If you would like further support on holidays, furlough or quarantine and you are a Make UK member, please contact your adviser. Non-members are welcome to call us on 0808 168 5874 or email [email protected].
Make UK Members can access our Checklist: deciding your policy for managing employee absence due to quarantine after overseas travel, in the HR & Legal Resources section of our website, as part of the Furlough Letters and Resources Pack. If you’re not a member, you can buy the pack online here.
We have also produced a Checklist: updating your absence management documentation in light of Covid-19, which outlines possible adjustments you could make to your absence documentation in the context of Covid-19 to better inform your employees and protect your business. This is available for free to both members and non-members. To access this Checklist, please click here.
The FAQs on our website are also updated regularly and provide detailed guidance on holidays, shutdowns and other issues in relation to Covid-19.