Employment Rights On Self-Isolating After Returning To The UK – Guidance For Employers & Employees

With the UK’s travel corridor list being updated regularly (Switzerland, Czech Republic and Jamaica were removed from the list yesterday) due to spikes in Covid-19 cases across the world and many people going on an overseas holiday, it is important that businesses and employees know their employment rights if they are currently visiting or are about to visit a country which is on the quarantine list.

The Government has recently issued guidance to employers and employees in relation to employment rights on self-isolating after returning to the UK and we have summarised the guidance below, and also provided some general advice.

Employment rights guidance on self-isolating after returning to the UK

Working from home during self-isolation

Anyone returning to the UK from a country which is not on the travel corridor list must self-isolate for 14 days. In such circumstances, an employee should work from home during this period, if they are able to.

Employees should also speak with their employer about working from home before they leave the UK.

Taking annual leave whilst self-isolating

Alternatively, businesses and their employees can agree for annual leave to be used during the period of self-isolation. This will obviously be dependent on the amount of annual leave the employee has left to use.

It is worth noting that an employer can also tell a member of staff to take annual leave, if they are given enough notice.

Travel due to a family emergency

The guidance states that an employee who has to travel to deal with a family emergency may be able to take unpaid leave during the self-isolating period.

General advice to employees

Employees who are currently on holiday in a country which is then subsequently removed from the travel corridor list should make all efforts to contact their employer and alert them to the situation, as soon as possible, to seek to agree an approach to their quarantine period.

Employees who have plans to travel to a country which is not on the travel corridor list should get in touch with their employer prior to them leaving the UK, if they are still going to go, and seek to agree how their self-isolating period will be managed when they return.

It is important that employees consider that although the Government has asked employers to be sympathetic to those who are currently on holiday, or are very soon to travel to an destination removed from the travel corridor list and have little opportunity to change their plans, there is no legal requirement for employers to be so and the financial reality might dictate otherwise.

Furthermore, employers are much less likely to be sympathetic where the employee is not yet in a country removed from the travel corridor list and has the opportunity to re-arrange their travel plans.

Employees who have not agreed a plan with their employer before they travel and who then quarantine when they are due back at work, will be absent without authorisation and this can be considered a disciplinary offence.

General advice to employers

As mentioned above, the Government has previously asked employers to be sympathetic to employees who are required to quarantine but there are still no legal rules on this. Where employees can work from home without any detriment to the employer, or are already working from home, the employer will probably not have any objection to them doing so for their quarantine period.

However, for employees who can’t work from home, businesses are not obliged to arrange work for them to do from home or to pay them for their absence beyond their annual leave period.

For members of staff that are about to travel overseas and haven’t yet left the UK, we would suggest employers should be actively communicating with them about the potential impact of their travel plans on their employment. As the guidance above states, it is reasonable for employers to say that if an employee is impacted by the travel quarantine measures that they will need to work from home (if possible), request additional annual leave or a period of unpaid leave. Employers will have their usual discretion whether to allow this or not.

Employers can also communicate that they would consider any absence post-holiday periods to be unauthorised where employees have travelled overseas, whilst being aware that it would mean that they cannot attend work for 14 days thereafter.

Employers need to be careful that they are not seen to be encouraging employees to breach the quarantine rules in any way.

We would advise that all employers consider and have their own rules and policies in place and communicate them clearly to their workforce to avoid ambiguity or misunderstanding further down the line.

Disciplinary proceedings

The Government guidance also provides information to employers in relation to dismissing members of staff, if none of the options above are applicable and is the only option available. Staff dismissals, by law, have to be done fairly and in such circumstances, valid reasons would most likely be for capability or conduct, or redundancy.

A dismissal is only seen as being fair and appropriate if it is a reasonable response in the circumstances and the employer follows a fair procedure throughout the dismissal and disciplinary process.

If an employee feels that their dismissal was unfair (and they have worked for their employer for a minimum of two years) then they may be able to make an Employment Tribunal (ET) claim for unfair dismissal.

An ET will then consider the circumstances of the dismissal, specifically:

• Public health guidance regarding Covid-19
• The employees’ behaviour and conduct
• The investigation process/procedure followed by the employer;
• Whether the reasons given by the employer for dismissing the employee were just, reasonable and proportionate in the circumstances;
• Whether the business followed the Acas Code of Practice on Disciplinary and Grievance Procedures, if applicable; and
• The size and resources of the business.

A business who dismisses a member of staff solely due to the fact that they had to self-isolate following travel to a destination outside of the UK could be liable for unfair dismissal.