The summer holidays have almost ended but many employees are still hoping to jet off abroad. This raises issues about quarantining when returning from red or amber list countries.
It is important to remember that each of the UK's devolved nations provides its own rules and guidance on international travel. These rules are complex and cover, for example, pre-departure tests, tests following arrival and quarantining in some circumstances.
The rules change at very short notice and employers need to keep up-to-date to be aware of the implications of employees holidaying abroad and to ensure compliance with the returning nation's rules.
Managing travel abroad
Employers may be concerned about employees having to quarantine (or self-isolate) when returning to the UK, and may wonder whether they can ask employees to reveal holiday plans or even veto them.
Employees are not obliged to discuss their holiday plans with their employer. However, if an employer genuinely believes the employee will not be able to physically return to the workplace (eg, because it is suspected that they will have to quarantine on return), it is reasonable to inquire about where the employee is travelling to. This is to ensure both the employee and employer comply with any health and safety duties and Covid-19 regulations.
People should not travel to red list countries, but a country's status can change at very short notice. Employers could consider instructing employees not to travel to red list countries, and potentially amber list – but it is highly unlikely that this would be a reasonable management instruction given it dictates what the individual can do with their leisure time, and it would certainly negatively impact relations.
In addition, attempts to restrict travel to certain countries may be indirectly discriminatory as nationals of those countries could potentially claim that such a policy disproportionately affects them.
If there are genuine concerns about employees having to quarantine (due to managing staffing or workloads), a more proportionate response would be to make clear, in advance, employees' options regarding quarantine. Communications should, however, be sent out to all staff rather than to specific individuals, and no assumptions should be made about vaccination status based on an employee's age.
Requirements to quarantine
If an individual is fully vaccinated there will be no need to quarantine when returning from amber list countries assuming they test negative. However, anyone obliged to quarantine will be unable to attend the workplace on their return. This is particularly important as the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations (SI 2020/1045) prohibit an employer in England from knowingly permitting an employee to attend anywhere other than where they are quarantining.
These regulations apply not only to those testing positive with Covid-19 or officially notified as a close contact, but also those required to quarantine on return from amber list countries if not fully vaccinated. Fines for employers breaching these regulations range from £1,000 to £10,000. Employers should communicate this, and also the legal obligation on staff, under the regulations, to tell an employer if they have to quarantine when they would otherwise be attending the workplace.
If the individual is able to work from home, an employer can more easily manage their return to work, and they should be paid as normal.
The position is more difficult where an employee cannot work remotely. Firstly, the employee could take more annual leave. While this would provide salary for the quarantine period, a significant amount of annual leave is used up.
Alternatively, an employer may require them to take unpaid leave. While the individual may be ‘ready and willing’ to work, a voluntary decision to travel may mean they are not ‘able’ to attend the workplace, and therefore, the employer could decide not to pay them for the quarantine period, unless they actually had Covid-19 or were officially contacted as a close contact, in which case they may be eligible for sick pay.
In light of the risks and practicalities involved, it may be prudent for employers to update disciplinary policies to include compliance with Covid-19-related guidance and regulations and potential disciplinary proceedings for deliberate non-compliance.
Nia Pawley is a senior solicitor in the employment team at Blake Morgan