A number of those impacted by the new hotel quarantine rules are likely to be employees who have travelled to “red list” countries for work. This raises a number of issues for their employers, including whether it is reasonable to require an employee to travel to a country which will result in mandatory hotel quarantine, how to support employees’ health and wellbeing while they are quarantining, and how to minimise the risk of discrimination claims. We set out below some key considerations for employers.
England’s new hotel quarantine rules came into effect on Monday 15 February. Many arrivals in England (including those who arrive in England but are travelling on to Scotland, Wales or Northern Ireland) who have visited or passed through a red list country in the previous 10 days are required to quarantine in a government-contracted hotel for 10 days.
Mandatory hotel quarantine, similar to the quarantine schemes that have been in place in Australia and New Zealand for some time, has been implemented in addition to the requirement for all arrivals to demonstrate a negative COVID-19 test in the three days prior to travel, and the ban on non-UK residents from entering the UK from any of the 33 red list countries. Scotland has even stricter quarantine rules, requiring mandatory hotel quarantine for all arrivals (subject to a few exceptions).
Those travelling from Ireland, the Channel Islands or the Isle of Man are exempt from the hotel quarantine requirements. Those undertaking certain job roles are also exempt from hotel quarantine, including those working in border security, diplomatic missions and international organisations, Crown servants and government contractors, defence personnel and visiting forces and representatives of a foreign country of territory.
However, those who regularly work abroad in a red list country or who work in the UK and live abroad in a red list country are not exempt and remain subject to the hotel quarantine rules. Individuals would be wise to check the government guidance well in advance of travel to determine whether their job role would exempt them from mandatory hotel quarantine (or any other COVID-19 rules for arrivals in England) and, if so, what additional documentation would be required at the UK border.
If no exemptions apply, travellers must book their quarantine “package” in advance of travel at the cost of £1,750 for a single adult (and £650 for each additional traveller over the age of 12, and £325 per child between the ages of 5 and 12). The package, booked through an online portal, includes assigned transportation from the airport to the hotel, food and drinks, 10 days’ accommodation, security and testing. Anyone who fails to quarantine in a hotel where required to do so faces a fine of up to £10,000, whilst those who are caught giving false information on their passenger locator form about the countries they have visited in the 10 days before arrival in the UK could face a fine of up to £10,000, up to 10 years in prison, or both.
Under the current lockdown rules, it is only legal to leave home, including to travel abroad, for a limited number of reasons. Given that one of these reasons is for essential work that cannot be done from home, a large number of those affected by the new mandatory hotel quarantine will be individuals travelling for work purposes. This raises a number of issues and considerations for their employers.
Is it a reasonable instruction?
Although an employee’s employment contract may refer to the need to travel internationally on business trips as part of their role, it is unlikely that it will contain any provisions relating to quarantine (or self-isolation generally) after travelling abroad for work. However, implied into all employment contracts is a requirement that employees will follow all lawful and reasonable instructions of their employer. What is considered “reasonable” will depend on the circumstances, both the employer’s reasons for requiring the employee to travel, and the employee’s personal circumstances.
An employee who is asked by their employer to attend a two day business meeting in Lisbon, Portugal, a country which is currently on the red list, meaning the employee would be required to quarantine in a hotel for 10 days upon their return to England, may be entitled to refuse the instruction on the basis that it is not “reasonable”. Having to undergo 10 days’ self-isolation for a two day business trip may itself be disproportionate, but to ask employees to be away from their home and family, and sacrifice their freedom and comforts while quarantining in a hotel may justify their refusal further.
In some industries, and for certain business reasons, travelling abroad may be necessary and unavoidable (for example, due diligence site visits). However, the fact that many companies have successfully operated virtually over the last year will likely make it difficult for many employers to justify business travel that will result in hotel quarantine as a “reasonable” instruction. In most cases, it will be unreasonable for an employer to subject an employee to disciplinary action for refusing to travel to a red list country because of the need to quarantine on return.
Expenses and wellbeing
Employers that require their staff to travel for work reasons will have to pay the £1,750 cost of the hotel quarantine period. In addition, an employer may be presented with a substantial expenses claim for additional food and drinks from the hotel’s room service menu or for takeaways delivered to the hotel.
Government guidance states that those in hotel quarantine will “not as a matter of course be allowed outside to exercise” but must exercise in their room. Given the duty to support the wellbeing of their employees, employers should consider how they can support the physical wellbeing of employees in hotel quarantine without access to any outdoor/large space. Similarly, employers should seek to support the mental health of their employees spending the 10 day quarantine period alone in their hotel room; for example, by encouraging regular contact with colleagues on working days and checking in regularly with the employee.
Possibility of discrimination claims?
When considering who may travel abroad to a red list country for work, employers should be alert to the possibility of discrimination claims. The requirement to travel and then to quarantine may have a disproportionate impact on certain groups of employees with protected characteristics, such as those with disabilities or with caring responsibilities. However, an employer should be wary of making judgments about which employees will be least impacted by the new arrangements, and only selecting these individuals for business travel: for example, an employer sending only male employees on work trips to red list countries, rather than female employees (who are statistically more likely to have children/caregiving responsibilities that would be disrupted by the hotel quarantine period), could give rise to sex discrimination claims. Similarly, only asking younger employees to travel on the basis that they are more likely to live alone and less likely to have families or caregiving responsibilities, could give rise to an age discrimination claim.
Employers should also be wary of implementing blanket travel policies based on those who have received a COVID-19 vaccine, as this may also increase the risk of discrimination claims. Under the UK’s current vaccine priority list, only older age groups, front line workers, the clinically vulnerable and their carers are currently eligible to be vaccinated. Should an employer only want to send vaccinated employees on international work trips, younger employees may feel disadvantaged, increasing the possibility of an age discrimination claim. Likewise, those who cannot, or do not want to, be vaccinated and, as a result, are overlooked for business travel, may have grounds to bring a claim for discrimination on the basis of pregnancy or maternity, race, religion and belief, or disability.
It would be wise for an employer to have an open and supportive dialogue with employees about the feasibility of business travel, before making any decisions.
Employers should also be aware of the impact of the new hotel quarantine rules on sponsorship and migration of employees. Under the current rules, only British or Irish nationals, and those with “residence rights”, are permitted to enter the UK from a red list country. All non-UK residents (i.e. visitors) from red list countries are banned from entering the UK. Whilst there has been some confusion as “residence rights” has not been clearly defined on the government website in relation to the new rules, the Home Office has confirmed that it includes those with indefinite leave to remain, settled or pre-settled status under the EU Settlement Scheme or limited leave to enter or remain (such as. students and workers) but that it does not include visitors. Employers who are considering, or are in the process of, sponsoring a migrant from a red list country to work in the UK should therefore factor in the additional costs and time in quarantine for the employee and any dependants when making an application and planning travel arrangements.
England’s new hotel quarantine system will undoubtedly make employers question whether business travel really is essential. While the impact that vaccinations and possible ‘immunity passports’ will have on future international travel remains unknown, mandatory hotel quarantine presents employers with a number of considerations which, coupled with the additional costs, may make business travel simply unjustifiable in many cases.