The Department for Business, Energy & Industrial Strategy (BEIS) has announced further guidance for employers on the requirement to self-isolate after returning to the UK.
With the relaxing of lockdown restrictions, increasing numbers of employees are travelling abroad for work-related travel, holidays or to visit family. In some cases, employees will need to self-isolate for 14 days upon their return to the UK. For those who are unable to work from home, any period of self-isolation will extend the employee’s absence from work.
In the majority of cases, it will be clear from the outset whether the employee’s travel plans will require them to self-isolate upon their return. However, the government has recently removed a number of countries from the travel corridor list at short notice, resulting in unexpected periods of mandated self-isolation for employees already overseas. The situation is frustrating for both employees and their employers. We explore below some of the legal and employee relations issues that may arise as a result of post-travel self-isolation and how employers might seek to address these.
Self-isolating requirements after returning to the UK
The guidance states that anyone entering the UK will need to self-isolate for 14 days unless their period of travel is to a country or territory that falls within one of the following quarantine exemptions:
- Covered by the travel corridor exemption
- Within the common travel area (Ireland, the Channel Islands, the Isle of Man) or
- A British overseas territory
What are the options available to employees who are required to self-isolate?
To reduce potential issues and provide a level of certainty for all concerned, employers should discuss with their employees in advance of travel the following options for how the employee might spend any period of self-isolation. Employers should have these discussions with all employees, even when an employee is travelling to a destination that currently falls within the travel corridor exemption (in case this situation changes while the employee is overseas).
- Working from home - employers should discuss with their employees, in advance of travel, the option of working from home (where possible) during any period of self-isolation and to prepare practically for this scenario if the employee does not usually work from home (for example, provision of equipment or assignment of special projects).
- Annual leave – employees can request to take annual leave to cover any period of post-travel self-isolation, if they have enough remaining leave to do so. Employers may also require that their employees take leave during a period of post-travel self-isolation, provided that they give the employee sufficient notice (and that the employee has enough annual leave remaining).
- Unpaid leave – an employee may be entitled to a period of unpaid leave if they face an emergency involving certain family members or dependants which requires them to travel (and consequently to self-isolate).
Is the employee entitled to pay while self-isolating on return from travel?
Clearly, if the employee is working from home during any period of self-isolation, they should receive their normal pay. Likewise, if they take annual leave, they should receive their normal holiday pay.
It does not appear that an employee is entitled, at present, to receive Statutory Sick Pay (SSP) for a period of post-travel self-isolation (unless, for example, they become unwell, test positive for COVID-19 or are notified by NHS Test and Trace that they need to isolate). In view of this, if the employee is unable to work from home, and either chooses not to use annual leave or has insufficient annual leave remaining, any period of self-isolation will be unpaid.
It is likely to be unreasonable for an employer to withhold pay during a period of post-travel self-isolation where the individual was required to travel for work-related reasons.
Can employers prevent an employee travelling overseas if they are likely to need to self-isolate on return?
Long periods of absence are disruptive for employers, especially while many businesses are under strain in the current economic climate. However, a blanket ban on travel to particular destinations may be unreasonable and may also disproportionately impact certain groups of employees who wish to use their annual leave to travel abroad to visit family. Employers should also seek to avoid policies which may be divisive among the workforce (for example, policies that only permit overseas travel for those traditionally white collar employees who are able to work from home).
Consistency in approach will be critical to avoiding claims of unfairness and discrimination. A clear and well publicised policy on overseas travel in the post-lockdown era will also assist employers in managing their workforce. Employees may be disincentivised from travelling overseas if they know, in advance, that any period of self-isolation will be unpaid (if they cannot work from home and do not take annual leave). Policies might also deal with the practical consequences of an employee being overseas when a travel corridor closes.
Where it is known, or it is likely, that an employee will be required to self-isolate on return from travel following a period of annual leave, an employer may be entitled to postpone the leave until a later date when it is more practicable for the individual to take it. The recent change in rules allowing for annual leave to be carried over for two years will assist employers who are seeking to postpone annual leave in this scenario. The individual’s particular circumstances may, however, make it unreasonable for an employer to insist on postponing leave, especially if the leave has already been approved and the individual has incurred non-refundable costs. The individual’s reasons for travelling overseas may also be relevant in determining whether it is reasonable for the employer to postpone their leave.
Can an employer discipline an employee who is required to self-isolate on return from travel?
If an employee travels overseas in direct contravention of a reasonable management instruction and is consequently required to self-isolate, or if the employee takes unauthorised absence (for example, where a request for annual leave to travel overseas has been denied), they may be subject to disciplinary proceedings. An employer should always consider the individual circumstances and whether there are any mitigating circumstances that justify overseas travel, before issuing a disciplinary sanction.