The Rights of Self-Isolators

On 10th July 2020, the government introduced a travel corridor list of exempt countries that people could travel to. People arriving in the UK from any of these exempt countries would not be required to self-isolate if they had not also visited a non-exempt country in the 14 days previous.

Since then, the government has removed several countries from the exempt list including Spain, Belgium, France, Netherlands, Luxembourg, Andorra, Bahamas, Malta, Monaco, Aruba, Croatia, Austria and Trinidad & Tobago. These announcements were done at short notice and the countries were removed from the list within a couple of days.

As a result of this many people have unexpectedly been required to self-isolate upon their return to the UK.

Working from home

Government guidelines say that where possible, employees should be able to work from home during their isolation period.

If an employee can work from home or the place where they are self-isolating, then they should be allowed to do this and be paid in the normal way.

Unless it is specified in the employment contract, employees do not necessarily have a right to work from home, all home working arrangements must be agreed with the employer, although during the pandemic many employees have found themselves homeworking for the first time.

Right to Pay

If there is no express term in a contract of employment on deducting pay, the general principle is that a worker is entitled to pay if they are ‘ready able and willing’ to work, even if they perform no work.

It is not entirely clear whether an employee who is self-isolating is ‘able’ to work. The ACAS guidelines suggest if an employee cannot work from home then they are not entitled to pay.

The statutory sick pay entitlement right was extended in March to cover employees who were self-isolating because they or someone they lived with had symptoms of coronavirus. This right has not been extended to those who have to self-isolate after travelling abroad.

If an employee began to show symptoms at any point during their 14-day self-isolation, then they would be entitled to claim statutory sick pay.

Other options could include:

  • placing the employee back on furlough leave – since the 1st of July, employees previously placed on furlough could participate in the flexible furlough scheme;
  • the employee taking more annual leave;
  • the employee taking time as unpaid leave;
  • TOIL or agreement to make the hours up over an agreed period (if possible);
  • a mixture of the options above, – allow part holiday hours to be used and part unpaid for example.
  • Receiving company Sick pay, although the wording of company sick pay schemes may not apply in these circumstances, but a company could look to making an exception to pay part or even full wages, to ensure that employees adhere to the self-isolation period and not risk infecting others in the workplace.

If an employee travels abroad for work purposes then it would be deemed reasonable for employers to pay the employee for the self-isolation period, if they could not work from home, because the travel was a requirement of their job.

Agreeing Annual Leave

Employers should have open discussions with their employees about their holiday plans, especially when these plans include travel to countries where quarantine is required upon return to the UK.  Employers need to plan for the impact of any 14-day quarantine period on the employees work and that of the wider team.

Employers should:

  • not allow business travel at the present time, unless this travel is deemed critical, then this should be only to countries on the travel corridor list;
  • discuss quarantine requirements with an employee before they travel and agree how this will be managed on their return including payment;
  • be aware that last minute changes are happening with new countries being removed from the list and reassure employees that an agreed plan can be arranged,

If an employee insists on travelling and they refuse to use more of their annual leave for the quarantine period, employers could face a tribunal claim if they force employees to take annual leave to cover this period. There are rules that enable employers to specify when an employee takes their annual leave, but being in self-isolation at home would not be covered by this.

Cancelling Annual leave

Employees may wish to cancel their holidays and annual leave if the country there are due to visit is taken off the exempt list. ACAS guidelines here state that an employee can do this if the employer agrees to this, otherwise they may still need to take the annual leave from work.

The government previously announced that employees are allowed to carry over up to four weeks of annual leave into the next two years’ leave if it is not ‘reasonably practicable’ to take the annual leave in the current year due to the coronavirus pandemic.  This may capture workers that can no longer take annual leave because of a requirement to quarantine when they return to the UK.

Health and Safety

Employers and employees both have a responsibility to look after employee’s health and safety, this includes complying with the self-isolation advice, failure to do so could result in colleagues being exposed to the infection.

Employees who are Exempt from Quarantine

  • Road haulage and freight workers;
  • Seamen and masters;
  • Certain oil and gas workers;
  • Postal workers involved in the transport of mail into and out of the UK;
  • Medical and care professionals providing essential healthcare;
  • Pre-arranged medical treatment;
  • Passengers in transit, if they do not pass through border control;
  • Seasonal agricultural workers, if they self-isolate where they work;
  • UK residents who normally travel overseas at least once a week for work.

Protection from Dismissal

Employees that have worked for their employers for 2 years or more are protected from unfair dismissal. It would be unfair to dismiss an employee who could not come into work because they unexpectedly had to quarantine under the government guidelines. However, if an employee knowingly travelled to a non-exempt country and had not made arrangements with their employer or informed their employer of their intention to do this then this could be different.

Dismissal of an employee should be a last resort and employers should consider all alternative arrangements first. Guidelines state that employers who dismiss an employee because they have had to self-isolate following travel abroad may be liable for unfair dismissal, an employment tribunal would consider all the relevant facts surrounding a dismissal and for any dismissal relating to coronavirus this would include the public health guidance on Covid-19, an individual’s behaviour, employee’s circumstances and any previous history between employer and employee.

 

If you would like further guidance on the above information or any other HR topic please contact Clover HR on 0121 516 0299 or email us at info@cloverhr.co.uk


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