24 June, 2020
On 8 June 2020, the rules on travel changed, bringing in the obligation on individuals to provide details of their journey to the UK, contact details and where they will be staying. In addition, individuals travelling/ returning to the UK will be expected to self-isolate for 14 days upon arrival. This requirement is now solidified by the Health Protection (Coronavirus, International Travel) (England) Regulations 2020.
It was initially anticipated that on return to the UK, employees would be entitled to Statutory Sick Pay (SSP), contrary to the deemed incapacity provisions in regulation 2(1)(b)(ii) of the SSP Regulations, which covers cases of mandatory isolation of detention. Though at the time, we noted that legislative amends were yet to be made.
As of today (24 June 2020), the position is arguably confused. However currently, the stance of HMRC is that were a person to be subject to quarantine (even if it is referred to as self-isolation), then they would not be eligible for SSP. This would be due to the fact that they wouldn't have been advised by the NHS or other health authority to do so, and the Department of Work and Pensions (DWP) have no intentions to extend SSP to cover this scenario.
Arguably this means that, where an employee has been on holiday, rather than being required to travel, they are suggested to have voluntarily accepted the risk of the virus and the requirement to self-isolate, and the Government do not seem keen to fund periods of self-isolation which arise out of an individual's voluntary decision to travel overseas.
We anticipate that trying to prevent employees from going on holidays abroad is likely to be fraught with difficulty and likely to cause issues, as it will be difficult to justify being a 'reasonable management instruction.' Taking any action might also be considered indirect race discrimination as it could indirectly discriminate against those with families not based in the UK. Therefore, we consider the essential issues below, when having employees return to the workplace from abroad and the impact this may have on your organisation.
Where an employee is subject to detention or a restriction that requires them to self-isolate (such as the 14 day isolation period after travel to the UK), which in turn means they have to stay away from the workplace, it is unlikely that they would be regarded as being "able" to work.
Arguably, if employees are not able to work, the implied right to be paid, which may be relevant if there was no legal requirement to self-isolate, would not apply.
This therefore means that staff, who have returned to the UK and are unable to attend work to perform their job role, could go unpaid for the full 14-day isolation period. If staff develop symptoms of COVID-19 during this period, they will be entitled to a period of SSP and could be entitled to up to full pay, depending on any enhancements afforded by your contracts of employment.
One of the most notable difficulties for employers will be considering the payment, if any, employees can expect to receive when self-isolating at home; how these period of absences will be recorded; and any employment law implications associated with these decisions.
A considerable danger, in not paying an employee during this period, will be that they may choose to return to work, in contravention of the Health Protection (Coronavirus, International Travel) (England) Regulations 2020, which carries criminal sanction and puts your other employees at considerable risk.
As we understand, an employee can work from home during this period of self-isolation. The difficulty we foresee with this will be ensuring continued management of these employees, to ensure they remain outcome driven and focussed during this period. This may require employers to reflect on their current policies and procedures and updating these to ensure applicability to your current business needs.
If an employee is able to work from home, they will be entitled to full pay.
The difficulty lies in treating employees within your organisation differently, allowing some employees to self-isolate and work from home, it may not be good for morale as a whole, if those who are unable to work from home are not being paid or being required to take an additional period of annual leave. This is something we can support you with, to ensure the continuity of employee relations and help to implement a plan for the treatment of your employees during self-isolation.
As an employer, you can prevent employees from taking annual leave (and consequently, holidays abroad), under the Working Time Regulations, provided you give adequate notice of refusal. The understandable difficulty in refusing annual leave will be any ill-feeling and impact on morale this course of action creates. We can work alongside you to help alleviate these issues and mitigate any risks they pose, such as discrimination risks.
Public Sector and Social Housing providers employers do generally offer quite favourable holiday entitlements and sick pay provisions and we understand the concern that will be caused across your organisation, in suggesting that a period of self-isolation, following return to the UK, may be unpaid. On this basis, we suggest reflecting on your current organisational stance and procedure, to clarify any uncertainty employees may have during this time. In addition, we can work with you to reflect on your employees' circumstances on a case by case basis. In doing this, we can help you to account for any discrimination risks posed by the changes you make to your policies and procedures, and safeguard against those risks.
Finally, we can help orchestrate a more stringent approach to organisation- wide communications and the approval of annual leave, to ensure business continuity and efficiency and mitigate any risks posed by an employment law perspective.
If you require any assistance with any of the above, and/or wish to discuss some of the issues highlighted above in further detail, please do not hesitate to contact.
Further details regarding the requirement to self-isolate and regular updates are available by following this link: https://www.gov.uk/uk-border-control.
For more information contact Laura Cieplak in our Housing & Regeneration department via email or phone on 01772 220188. Alternatively send any question through to Forbes Solicitors via our online Contact Form.