International travel quarantine: An employment law perspective

On Saturday 25^th July, it was announced that travellers returning to England from Spain will have to quarantine for 14 days from 26^th July. The Foreign and Commonwealth Office is now advising against all non-essential travel to mainland Spain based on the current assessment of COVID-19 risks. This comes after infections have spiked in parts of Spain after restrictions were eased. However, the Government has since made it clear that similar restrictions could also be imposed on travellers returning from other destinations should there be any coronavirus outbreaks in those countries. We have taken a look below at what employers should take into account when considering how this policy affects them.

What does the law say?

The UK Government has designated certain countries and territories as being on its ‘travel corridor’ list, meaning that travellers to these countries do not have to quarantine for 14 days upon their return to the UK. The list of countries and territories is contained within Schedule A1 of The Health Protection (Coronavirus, International Travel and Public Health Information) (England) (Amendment) Regulations 2020 (for ease –“the Regulations”).

However, despite guidance from the Foreign and Commonwealth Office now advising against all non-essential travel to mainland Spain, the Regulations remained unamended for days after the announced changes to the guidance. It is therefore advisable that employers refer to the Government Guidance for up to date travel information, rather than relying on previously enacted legislation that is struggling to keep up with an ever-changing situation.

What has the Government said about how this affects employers?

The Foreign Secretary, Dominic Raab, last weekend stated that employees “cannot be penalised in this country lawfully for following the rules and the law that’s in place” and also suggested that employers should ‘show flexibility’ to employees who return from Spain and will need to quarantine for 14 days. I would therefore read this to mean that the government are encouraging employers not to financially penalise employees in such situations or use it as an opportunity to discipline them or withhold salary for any periods of quarantine (unless of course the employee consents to a period of unpaid leave).

However, from an employment law perspective, although showing ‘flexibility’ can be an example of an employer acting reasonably, there isn’t necessarily anything in the law which prevents employers from penalising or dismissing employees who are quarantining and who don’t have two years’ service (so as to qualify for the right not to be unfairly dismissed). Although penalising or dismissing employees is quite an extreme example, it is important to highlight that employers are able to take action and employees do not have to necessarily be paid in full for the time they spend quarantining. Employers should, therefore, not feel as if they are restricted by the advice of the Foreign Secretary.

What should employers do?

Clearly, this change in guidance will have a detrimental impact on those who have holidays booked to Spain, which have not already been cancelled. It also presents possible issues for employees who have booked to go abroad to other countries currently within the ‘travel corridor’ on the basis the situation can change quickly in response to a spike in infection rates. This may be less of an issue for those who are able to work from home during any period of mandatory quarantine, however for those who are unable to work from home, this may cause great disruption for all concerned, as during this period they will be unable to attend work.

From an employer’s perspective, where they are faced with an employee who has travelled to Spain, or any other country which is either not on or has been removed from the ‘travel corridor’ list, they must consider how to treat the employee’s absence if they are unable to work during the quarantine period. Some options may include requiring the employee to take annual leave for the quarantine period, treating it as sick leave or a period of unpaid leave (rather than an unauthorised absence).

Travel and holidays going forward

What is clear from all of this is that the Government has no issue with amending its travel guidance, with an almost instant effect, depending on COVID-19 outbreaks in other countries. Although the aim of such a policy is to reduce the spread and infection rate of COVID-19, it clearly has a knock-on effect on both employees and employers. Going forward, employers should do what they can to act reasonably and also consider whether their current holiday policies are appropriate to deal with short notice developments. Transparency and clear communication with employees are likely to be key to any employer who wants to implement a new holiday policy which deals with these sorts of issues.

We have been advising clients throughout the coronavirus pandemic as the law and guidance in this area has been constantly changing. If you would like to have a discussion about any issues your business is facing, please get in touch with me at Jane.Sinnamon@collingwoodlegal.com.