What do the Spanish quarantine rules mean for employers?

With people returning to the UK from Spain required to self-isolate for two weeks, David Sheppard answers key questions around the implications for workers

What do the Spanish quarantine rules mean for employers?

On 25 July 2020, the UK government announced the removal of the Spanish ‘air bridge’, leaving Brits just hours to try to get an immediate flight home before the end of the day, or otherwise face a 14-day quarantine period following their return, or risk a £1,000 fine.

Since this sudden announcement, there has been little to no guidance put out by the government on the issue. As a result, there is little at the moment which protects workers who find themselves in this difficult position.

Which employees will the rules affect most?

Employees with less than two years’ service who have fewer rights and recourse against dismissal than those with more seniority. 

Is this fair?

At the moment, employment legislation is not keeping pace with the speed of current events. However, the government will hopefully introduce fresh legislation to specifically protect workers in this situation against dismissal and provide them with a minimal income. Currently, if an employee has only been working at a particular business for less than two years and is dismissed for absence because of quarantining through no fault of their own, they will likely have no legal recourse other than their notice pay. 

What are a quarantined employee’s employment rights? 

At present, employees unable to work from home cannot claim statutory sick pay if they are self-isolating after entering or returning to the UK as part of quarantine. However, certain employees may be able to claim Universal Credit for this period. Consequently, employees may feel tempted to report even the mildest of symptoms to access SSP payments, and the current rules inevitably encourage false reporting of illness, or breaches of their quarantine, to enable a continuation of some form of income. 

Can employees take annual leave during their quarantine? 

There is nothing specific to prevent some or all of the additional 14 days of quarantine being taken as annual leave, though this will depend on the amount of leave an employee has left and planned for the rest of the year, and also the flexibility of employers who generally require some degree of notice for annual leave to be taken. Some employers may choose to extend periods of authorised paid leave if working from home is not possible, but there is currently no legal obligation to do so. 

What about furlough?

This is an option, but only for employees who had previously been furloughed for at least three weeks before 30 June. Their work absence is a direct consequence of the coronavirus pandemic, and SSP is not otherwise available during quarantine, meaning furlough in these circumstances is arguably a legitimate use of the scheme.

What should employers be doing to mitigate risk?

The ongoing uncertainty and chaos caused by the pandemic and rising level of infections in Europe means that more countries are likely to follow Spain onto the quarantine list in the coming days and weeks during the height of the summer holiday season. 

It is therefore advisable that employers should start to create contingency plans for potential quarantine of their employees who may be traveling in the near future. 

What is likely future government legislation?

The UK government has inexplicably failed to legislate any degree of support or protection for those in quarantine, particularly for those employees with less than two years’ service, who are extremely vulnerable to dismissal triggered by events out of their control. And for many employers who are already planning redundancies, to dismiss an employee who cannot work while in quarantine may be all too tempting. All of which makes breaches of quarantine more likely and undermines the policy. 

Urgent legislation is needed to provide the same entitlement to SSP as to those self-isolating for medical reasons, and provide specific statutory protection from dismissal for anyone restricted from working, whether this is due to quarantine following overseas travel or those who are displaying symptoms and must self-isolate for now a minimum of 10 days. 

David Sheppard is an employment lawyer at Capital Law