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 position 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 a member of staff 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.
But what impact will this have on staff taking annual leave?
We anticipate that trying to prevent staff 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 staff are 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 your school, it is unlikely that they would be regarded as being "able" to work.
Arguably, if staff 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.
As you will be aware, with the summer break approaching, many members of staff may wish to take a holiday abroad and/or visit family. Visits abroad, depending on when they are taken, may have an impact on staff returning to school in September and those that are continuing to work to support key worker and vulnerable children if schools remain open for this purpose during the summer. One of the most notable difficulties we foresee in the education sector will be understanding what, if any, pay staff are entitled to. Another significant concern may be how to effectively record these absences of self-isolation.
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 whether the Burgundy book applies.
A considerable danger, in not paying staff during this period, will be that they may choose to return to school, in contravention of the Health Protection (Coronavirus, International Travel) (England) Regulations 2020, which carries criminal sanction and puts your other staff and pupils at considerable risk.
One of the key considerations for the education sector will be ensuring lessons can continue to be successfully delivered during this period, with sufficient teaching staff available at any one time. Similarly, when having a member of staff at home, it will be necessary to consider what educational provision they can continue to deliver/ assist with from home, especially given we are now seeing the gradual return of pupils into schools.
In these circumstances, staff who can successfully work from home could be paid as normal.
In addition, there will be members of staff who cannot work from home, such as in-house catering and maintenance staff. The difficulty lies in treating these individuals differently. It may be that these members of staff will need to utilise some of their annual leave entitlement to account for self-isolation and/or agree to a period of unpaid leave. This is something we can support you with, to ensure the continuity of relations amongst your staff and to implement a general plan for the treatment of your staff during self-isolation, to help mitigate any foreseeable risks.
As an employer, you can prevent staff 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. There is also added complication when considering teaching staff, who are unable to take annual leave during term time, from an operational perspective. We can work alongside you to help alleviate these implications and mitigate any risks they pose.
As part of this, we can look at how you may negotiate the issue of paid/ unpaid leave, in terms of the approach you will apply to your staff as a whole and on an individual case by case basis. In doing this, we can work alongside you to account for any discrimination and breach of contract risks posed by the entitlement to sick pay during this time and safeguard against those risks.
Finally, we can help orchestrate a more stringent approach to organisational planning and staff communications, to ensure the provision of education does not suffer and to mitigate any risks posed from an employment law perspective, such as discrimination.
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.
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