In an update to our article of 8 June 2020, after increasing pressure to review the quarantine restrictions, which have applied now (with limited exemptions) for over 3 weeks to nearly all international arrivals into the UK, the Government has finally announced that with effect from 10 July 2020 travellers arriving from a number of countries, including Spain, Germany and Italy will not be required to quarantine.
The restrictions have been relaxed under a traffic light system which allows travellers from ‘green’ countries to enter the UK without restriction, while inbound travel from ‘red’ countries will still be subject to the existing quarantine rules.
As the holiday season approaches and more and more flights are opening back up, many employees may now wish to take the opportunity to take a break away from the UK. But what does this mean for employers who may now see a sudden flurry of holiday requests? Here we consider some of the practical considerations which may arise.
Can I ask my employees to notify me of their country of travel?
Employers should be cautious about enquiring into the details of an employee’s leisure time but, in the context of the current pandemic crisis, asking employees to notify country of travel for holiday purposes may be a legitimate management instruction where an employer reasonably believes that there will be a negative impact on the business’ operations if an employee travels to a ‘red’ country, for example, because they are unable to return to work for 14 days on their return.
Can I prohibit an employee from taking holiday in a ‘red’ country if they are unable to work from home on their return?
Employers should not be mandating how, or where, an employee spends their leisure time away from work and any attempt to do so is unlikely to be a reasonable management instruction. Employers who are concerned about the potential impact of an employee returning from a ‘red’ country should instead consider and review their holiday policy and, in particular, ensure that employees are clear what arrangements will apply to the employee on their return from holiday.
With the appropriate notice, employers could, for example, designate the quarantine period as a period of annual leave (although in terms of the 4 weeks’ leave provided for by European law, employers should bear in mind whether such leave would permit the rest and relaxation required). It may be more appropriate to provide that any quarantine period will be unpaid leave. Such measures may limit the financial impact on the employer and/or may be sufficient to actually deter employees from holidaying in a ‘red’ country. However, they do not, of course, circumvent the practical issues of an employee’s extended absence from the business.
Employers could instead refuse a request for holiday to prevent holiday being taken, regardless of the employee’s intended destination. However, this may be a very short-term approach. Employers need to bear in mind that employees are entitled to take a minimum of 5.6 weeks’ holiday per year and are also now permitted to carry over up to 4 weeks’ holiday for 2 years if they have been unable to take it in the relevant holiday year because of the impact of coronavirus. Refusing holiday requests will therefore lead to ongoing accrual of holiday, which at some point must be permitted to be taken. However, it is possible that the period of grace conferred by pushing back an employee’s holiday may be sufficient for quarantine restrictions to relax even further which may make it a sensible first option.
If an employee holidays in a ‘red’ country and is required to quarantine on return, do I have to pay them for that quarantine period where they are unable to work from home? Are they eligible for SSP in these circumstances?
This is not an area which has yet been tested and therefore cannot be assessed with complete certainty. It is strongly arguable, however, that an employee who chooses to holiday in a ‘red’ country in full knowledge of the implications for their return into the UK and their inability to work, are not entitled to receive pay for the quarantine period as they are not able to work. It is also unlikely that employees will be entitled to Statutory Sick Pay (“SSP”) in these circumstances on the basis that the Government has not amended the relevant legislation to provide for SSP to be payable during a period of quarantine arising from international travel (in contrast, for example, to changes which have been made to provide for SSP to shielding employees or those self-isolating under the Test & Trace regime).
If an employee holidays in a ‘red’ country but their job role falls within one of the quarantine exemptions do they have to quarantine on their return to the UK?
The Government has set out in legislation and guidance a list of exemptions to the quarantine requirements. Where an individual’s job role falls within one of these exemptions, they are not required to quarantine on their arrival into the UK. This does not necessarily mean, however, that those individuals are able to travel freely between a ‘red’ country and the UK regardless of the purpose of their travel. In many of the exemptions, the legislation makes clear that the travel into the UK must be for the purpose, or in the course, of an individual’s work and it seems unlikely that returning from holiday, albeit to then return to work in an exempt role, will meet this requirement.