Post-travel quarantine measures continue to pose a challenge to both holidaymakers and to travel industry managers alike.
The UK’s quarantine measures, requiring travellers entering into the UK to quarantine for 14 days, continue to apply to all but a short list of exempted countries.
Further, and as we have seen with the recent short-notice quarantine requirements applied to Spain, if there is a spike in coronavirus rates, a country can quickly be removed from the list of quarantine exemptions so travel cannot be risk-free.
This situation has caused widespread difficulty across the travel industry for both inbound and outbound travel, particularly as quarantine requirements were imposed as we entered into peak holiday season.
For employers in the travel industry, quarantine requirements are a tricky issue to navigate; not only are employers having to consider how to deal with employees quarantining on return from their holidays, but they also need to consider how to deal with employees whose roles involve regular or necessary overseas travel.
We have considered some of the key issues below.
The quarantine requirements demand people travelling into the UK self-isolate for 14 days, unless they have travelled from a country which is exempt from quarantine requirements by the UK government.
During the 14-day quarantine period, travellers are not permitted to leave their homes unless doing so to access medical care or buy essential supplies.
The quarantine rules may not apply to certain workers operating in the travel industry, including seamen, pilots, air crew, shuttle staff, operational and rail maintenance workers, road hauliers and UK residents who ordinarily travel overseas at least once a week for work.
While these exemptions do enable certain travel operations to continue, they have also attracted criticism for failing to take into account other roles which are vital to continuation and safety of travel sector roles.
Specific advice should be taken by employers and employees to determine whether they are exempt from the quarantine requirements.
Employers should also consider the quarantine requirements and exemptions in the destination of travel for such employees, to ensure they will not be subject to additional quarantine requirements on arrival.
For employees who can work from home, quarantine does not necessarily cause a significant issue. However, many employees who are unable to work from home must stay away from work for 14 days following travel, meaning that they cannot carry out their role.
At present, there is no entitlement to statutory sick pay for employees who cannot do their job from home but cannot attend work as a result of the quarantine requirement.
Further, if they cannot do their job, they technically have no entitlement to pay even if they are ready and willing to work.
As this creates a very difficult situation for employees who may have been caught out by last-minute quarantine requirements while they are abroad, employers have been encouraged by the government to try to be flexible in these circumstances.
Employers can work to soften the blow to employees. This may be by taking a view on what pay can be offered to an employee during the 14-day quarantine period, or by being creative about work that employees could carry out from home (albeit given the current economic climate, this may not be an option for all employers).
Another alternative would be to consider allowing the employee to take holiday during the quarantine period.
Usually holiday notice requirements would prevent employees from being granted up to two weeks of holiday at late notice.
However, if employers are willing to relax these requirements, some employees may prefer to use their holiday entitlement to ensure they are paid.
If an employee is not exempt from the quarantine requirements, then any planned business travel would have to factor in the two-week quarantine period on return, and potentially a quarantine period in the destination country.
Factoring in these periods of quarantine is likely to make most business travel too disruptive to be viable.
If an employee is required by their employer to travel as part of their role and has had to quarantine on their return, then employers should carefully consider how to deal with the post-travel quarantine period. If an employee can carry out duties from home then the situation is easier to deal with.
However, if they cannot work from home then refusing to pay an employee during a self-isolation period caused by business travel will not only sour employee relations, but may also cause a breach of mutual trust and confidence.
This potentially could result in a situation where an employee (with two years’ service) could resign and claim constructive unfair dismissal in response to this breach.
As such, employers in this situation should ensure that employees are paid during any such self-isolation period where they cannot work from home or, if they cannot afford to continue paying employees who are not working, remove the requirement for business travel.
Employers should also ensure that they have considered the health and safety aspects of requiring an employee to travel as part of their role, to ensure they comply with their legal duty to protect the health and safety of employees.
There does not appear to be a restriction on furloughing employees who are required to self-isolate on their return from travel, but government guidance on this is not currently clear cut.
The ability to furlough employees at this stage in time will still be subject to the requirement for that employee to have been furloughed previously for a minimum period of three weeks ending on or before 30 June 2020.
Employers considering this option should take specific advice on this approach to ensure it is compliant with the Coronavirus Job Retention Scheme.
Failure to comply with quarantine restrictions could result in criminal prosecution and a fine for the individual of up to £1,000. In the first instance, this should deter people from breaching the quarantine requirements.
Employers should also actively ensure that any employees who are required to self-isolate after travel do not attend the workplace. If they did turn up, they should immediately be sent home. If employers fail to do this, then they risk breaching their legal duty to ensure the health and safety of their employees.
Going forward, employers may wish to remind employees of the absence reporting policy, as well as alerting them to the serious risks to the employee and employer for failing to comply with the self-isolation requirements.
While employers can amend their business travel practice, it is not within an employer’s powers to restrict or dictate employees’ travel during their holidays, even if the employee may need to self-isolate as a result.
Employers can inform employees of the possible consequence if they end up having to self-isolate, such as facing a period without pay or disciplinary action, to deter them from travel, but ultimately it is the employee’s decision as to whether they take this risk during their annual leave.
Employers do have the ability to cancel employee holiday provided that they comply with statutory minimum notice requirements of such cancellation (notice must be more than or equal to the length of the holiday proposed) or such longer notice periods set out in any company policy or employment contract.
Employers must also provide reasons for cancellation and give the opportunity to re-book. However, this approach is unlikely to go down well with employees, not only because they will lose their holiday but also because they may lose money through last minute cancellations.
Employers should also be mindful of the purpose of annual leave – to provide employees with a period of rest from work – and the wellbeing benefit of this.
Additionally, employers are also obliged to ensure that employees take a statutory minimum number of days’ holiday (5.6 weeks under the Working Time Directive) so should be conscious that a failure to do so could create exposure to employee claims.
Unilateral cancellation of employee holiday should therefore be treated with caution. Employers may prefer to discuss the issue with employees with the aim of and to attempt to reach an acceptable arrangement for both parties.
It will likely be considered a heavy-handed approach to discipline employees who had quarantine requirements imposed whilst they were on holiday.
If an employee chooses to visit a country which is subject to quarantine rules before travelling, the approach to any disciplinary action may be different as that employee has deliberately chosen to take action that will prevent them from carrying out their role.
The extent and nature of any disciplinary action should be considered on a case-by-case basis.
As we are at the very beginning of the summer holiday season, and given the unpredictability of coronavirus rates and the likelihood of government responses to spikes in infection rates overseas, employers would be well advised to consider what their overall policy will be on post-holiday quarantine.
Employers may wish to outline to employees at an early stage what the consequences will be if they take the risk of going abroad and are caught out by quarantine rules imposed during their trip (particularly where employees cannot work from home).
his will also assist employees by allowing them to make an informed decision on taking their holidays.
If there is a risk that an employee could go two weeks without pay post-holiday, then it is important employees are made aware of this before travelling.
Rachel Kendall is an employment associate at law firm Kemp Little.