What should employers do if their staff have to quarantine after having holidays abroad?

One of the many things we have had to get used to because of the Coronavirus pandemic has been the sudden addition of international destinations to the quarantine list.

People who had started their holiday believing they could return to work as soon as they got home are suddenly having to quarantine for 14 days instead. This raises several issues for employers. In this article we look at some of the challenges this brings.

Will employees who quarantine be entitled to statutory sick pay?

The government guidance is clear on this – employees who must self-isolate after returning from abroad are not entitled to statutory sick pay.

Will the quarantine period be paid or unpaid?

If the employee can work from home

If an employee self-isolates after returning from abroad, but can work from home either in their own role or an adjusted role, they should do so on full pay. However, many roles in the workplace cannot be carried out remotely, so this may not be an option.

If that is the case, the situation is not so clear cut.

If an employee is unable to work from home

If an employee is not able to work, arguably the right to be paid would not apply. However, the employee may say that their inability to work is because of a third-party decision or external constraint. If an employee successfully argued that their inability to work is because of an unavoidable, external impediment, a decision not to pay could be unlawful.

That argument is likely to be strongest where quarantine restrictions were imposed after an employee had started their holiday. However, if the trip were booked or taken knowing that there would be a period of self-isolation at the end, it may be difficult for an employee to argue that this was a factor over which they had no control.

Can employees be asked to cancel holidays?

In theory, yes, but there is a risk that employees may seek damages from their employer if they lose money as a result. Further, if an employer cancels holiday at very short notice they may be in breach of the Working Time Regulations. Regulation 15 requires that employers must give the same notice to cancel as the number of days’ holiday.

Cancelling holiday or restricting where employees can take holiday could also, at its worst, damage the relationship of mutual trust and confidence and result in a constructive unfair dismissal argument.

It may be risky to require an employee to cancel a foreign holiday however there would be a substantially lower risk in a policy saying employees cannot book a foreign holiday provided it would not result in them losing money (or not missing some key family/religious event or medical treatment).

Do employers need a policy to cover their approach?

Drafting a policy and sharing it with staff is a good idea and many of our clients are doing this.

Assuming employees cannot work from home in self-isolation, we would recommend a policy which:

  • Allows for pre-booked holidays to be taken but on return the employee would be on unpaid leave; and
  • Requires employees to obtain permission from their manager before booking travel abroad.

Asking employees to take unpaid leave is recommended because requiring them to take holiday for a further 14 days might discourage them from taking holiday and result in them not having enough leave for the rest of the year, which could breach the Working Time Regulations. Remember if you do require an employee to take annual leave, you will again need to comply with the Working Time Regulations notice requirement – in this case, twice as much notice as the holiday being taken.

We recommend allowing employees to discuss their plans with their manager, rather than having a blanket ban on booking international travel, as the employee might need to travel for religious purposes or to obtain medical treatment or for urgent family reasons and a ban could lead to financial hardship.