On Saturday night, the government announced it was removing Spain from the list of countries on its travel corridor scheme. This means that anyone returning from Spain, including the Balearics and Canaries, must self-isolate on their return to the UK for 14 days.
There have been a number of flare ups of coronavirus across the world reported over the last week or so, and it's likely that the government will impose further restrictions at short notice on holiday makers and travellers to the UK.
This article considers the employment law implications of quarantine for schools and colleges who are expected to open for all pupils in September.
1. Do our employees have to tell us if they are quarantining?
Anyone who is asked to quarantine must self-isolate unless they are exempted from the rules. This means they must return to their home immediately after entering the UK and remain there for 14 days. They can't go out to work, shop for food or go outside for exercise.
Anyone who doesn't report for work must follow their employer's absence reporting procedure. Their absence should be recorded as 'authorised' unless they are actually sick.
2. Can we ask our staff to continue to work during quarantine?
You can’t ask anyone who is quaranting to return to their workplace and anyone who doesn't self-isolate, will commit a criminal offence. They can also be fined £1,000 in England, Wales and Northern Ireland and in Scotland £480.
The government wants schools and colleges to reopen to all pupils and students from the beginning of the autumn term which, for many, starts on Tuesday 1 September. This means that any member of staff who returns to the UK from abroad after Monday 17 August may not be able to start work immediately if they are returning from a country outside of the government’s travel corridor scheme.
Any member of staff who has to self-quarantine during term time will only be able to work if it is practical and feasible for them to work from home. If they can’t work from home, you must not ask them to return to their workplace and must immediately send them home if they turn up.
3. Do we have to pay staff if they can’t work?
In general, if any member of staff can’t work, you don’t have to pay them unless they are ill. However, your staff won’t be able to claim contractual sick pay unless their contractual terms clearly provide for this (which would be unusual). A joint circular issued by the ASCL, LGA and NAHT unions acknowledges that teachers and support staff whose terms and conditions are covered by the Burgundy Book or the NJC Green Book are not entitled to be paid if they self-quarantine.
Anyone who self-quarantines and does not have coronavirus symptoms isn't entitled to SSP either. This will leave many employees out of pocket and you may have to consider asking staff to:
- Take additional paid annual leave
- Make up the 14 days’ leave over a period of time
- Take unpaid leave
However, none of these options will be easy to accommodate for those members of staff whose contracts require them to work during term time and only allow holidays and other special leave to be taken outside of term.
If you have sufficient funds, you could also pay staff who aren’t able to return to work because they are in quarantine. For example, you may decide to only pay those members of staff who have travel restrictions imposed during their holiday, or where they have travelled due to extenuating circumstances such as to attend a family funeral or visit a sick relative. It's important to be clear and consistent in order to avoid grievances or complaints about discrimination.
4. Can we tell staff not to go abroad on holiday?
You can't normally dictate what your employees do in their own time, much less tell them where they can go on holiday. But, you can discourage them from going abroad in the last two weeks of the summer holiday by making it clear they will have to follow any quarantine advice in place (which could be imposed without much notice) and won't be paid during this time.
Bear in mind though, that some people will have booked their holidays pre-lockdown and may decide to go if they can, even if they must quarantine afterwards.
5. Can we cancel holiday leave to prevent staff travelling abroad?
In most cases, yes – but there are some risks attached. If the contract of employment or your holiday policy sets out how to cancel holiday, you must follow that. If there are no express provisions, the Working Time Regulations provide a mechanism for employers to cancel leave. Under Regulation 15(2)(b) you must give as much notice as the leave you want to cancel. Therefore, if you want to cancel two weeks’ leave you must give two weeks’ written notice. You’ll need to explain to your staff why you have cancelled their holiday and tell them when and how they can re-book.
In the context of schools and colleges, cancelling holiday may be particularly difficult. Many educational staff are required to work during term time and are, generally, able to take holiday during closure periods without specifically asking to take time off. This means you are unlikely to know if/when your staff are going away on holiday unless you ask them. Most are already on holiday and you may not be able to easily contact them to find out about their plans.
If you do decide to cancel someone’s holiday, they may ask you to compensate them for any cancellation charges they incur. They could also argue that you are acting unreasonably and are in breach of the implied term of mutual trust and confidence, which gives them the right to resign and claim constructive dismissal (they’ll need two years’ service).
6. What do we need to tell staff in advance of them going on holiday?
We recommend that you set out your expectations in a policy or write to employees so that they understand what might happen if they holiday abroad and are asked to self-quarantine afterwards. This should cover notifying you if they have travelled abroad, reporting their absence (and how it will be recorded on their records), whether they will be paid during quarantine and, if not, whether they can take outstanding paid holiday etc. You may also want to ask staff not to book last minute holidays abroad towards the end of the holidays.
The joint circular issued by the ASCL, LGA and NAHT unions says that employers ‘must’ make these arrangements clear before their staff embark on leave that will require quarantine.
7. Can we dismiss or discipline someone if they can't return to work because they are in quarantine?
The Foreign Secretary Dominic Rabb said on Sunday that “you cannot be penalised in this country lawfully for following the rules and the law that's in place” and suggested that anyone who is self-isolating should be treated sympathetically by their employer.
Employees don't have specific protection from being dismissed in these circumstances, but if they have two years' service, they may be able to claim unfair dismissal. You'd have to show you had a fair reason for dismissal and went through a fair procedure - including allowing an appeal. Not turning up for work is potentially, a fair reason, but most employment Judges are going to be sympathetic to anyone who has returned to the UK to find that quarantine rules were imposed during their holiday and they have remained at home in line with government advice.
The situation may be different if an employee chose to holiday in a country which already has quarantine rules imposed (such as the USA) - but you'd still have to show the reason for your dismissal was within the 'reasonable range of responses'. That will depend on the individual circumstances and we recommend that you take advice first.
You can, potentially discipline someone for travelling abroad if they can't return to work promptly because they have to quarantine, but you only should do so if it’s reasonable to take action against them. That might be appropriate if they book a holiday knowing that they will have to self-quarantine afterwards.
If you take any action against staff, they are likely to appeal or raise grievances. Most staff have worked extremely hard during lockdown and will resent being criticised or disciplined for taking a well-earned break. Plus, dealing with this will eat into management time and could distract you from the hard work involved in keeping your staff and children/students safe when they return.
Jo Moseley is a Professional Support Lawyer in the Employment Team at Irwin Mitchell