Last week, we published a blog on the lack of SSP where employees are required to isolate the following travelling to certain countries. In that blog, Our solicitor, Alicia Collinson, explained that she was particularly concerned the lack of pay might discourage employees from following the isolation rules, rather than discouraging employees from travelling in the first place.
This weekend, the option to travel was taken out of employee’s hands, as a previously safe country, Spain, was subject to quarantine rules over the weekend. In some respect, this means that the previous justification for the lack of SSP (that employees chose to travel there, knowing the rules) has now gone, as employees weren’t to know that the rules would change.
Over the weekend, Dominic Raab stated that “If someone is following the law in relation to quarantine and self-isolating the way they should, they can’t have penalties taken against them.”
This is frankly nonsense and here’s why:
- Employers don’t have to pay employees if they are not in work because of quarantine;
- Employees aren’t eligible for SSP;
- Employees could be dismissed if they don’t go to work when they return.
So, what should employers do? What are employees’ rights? Here are some of our frequently asked questions.
What should employers do if they have an employee on holiday in Spain?
You should assess whether the employee can work from home from upon their return. Even part of their role, is there something they can do to avoid being unpaid?
If they cannot do any of their roles from home you need to work with them to come to an agreement for the 2 weeks on whether this will be paid (perhaps even at SSP equivalent?), unpaid or annual leave. The crucial point is that an agreement should be reached where possible.
What happens if employees are dismissed because of mandatory quarantine?
If you have been employed less than two years, then there is very little you can do as the only recourse would be unfair dismissal here, of which those with less than two years’ employment would not be eligible to claim.
However, anyone with over two years continuous employment is likely to have a robust claim for unfair dismissal, if dismissed for this reason, as in our view, a dismissal would fall outside the band of reasonable responses.
In any event, employers should seek to avoid dismissals and focus on coming to an agreement in these difficult circumstances.
Are there any discrimination issues?
In short, there is only one discrimination issue which could legitimately be claimed, and that would only be for Spanish nationals. Where Spanish nationals have travelled home, and then been affected by the changes to rules, they could legitimately claim that the lack of pay whilst isolating is indirect discrimination because of their national origin. Those are obviously very specialised circumstances for a claim.
What should employers do moving forward?
This is a difficult time for every one and employers need to use this as an example of how to plan moving forward together and avoid dismissals. The rules could change again for other destinations at short notice and businesses need to be ready for this.
At Thrive we will be advising our clients to record what countries people are travelling from, and agree in advance what would happen upon the return of individuals from holidays aboard where the quarantine rules change last minute, as they have done this weekend. This makes the position clear for both parties in the event of any further changes.
Can employees refuse to come back into work, where employers suggest they do in breach of their obligations?
In short, yes. They can refuse to attend work where they are required to isolate, for health and safety reasons. They should raise their concerns about the request formally, as they may therein be protected as a whistle-blower. They should not be subject to any detriment, such as dismissal for refusing to attend work if they are following their obligations.
The employer is under no obligation to pay them for this time period though.
If an employee has taken a test and it’s negative, can they return?
The guidance is unclear for those returning from Spain whether this is a possible alternative as it doesn’t specially address this point, which is unhelpful. However, it does say a negative result means the test did not find coronavirus and you do not need to self-isolate if your test is negative.
On this basis we are unable to confirm on the current guidance.
What if the employee comes to work anyway?
An employee can be refused access to work by an employer, where that employer knows that the employees should be travelling moving forward. If the employee refuses to (for example) confirm where they have travelled, then this could give rise to disciplinary consequences as a failure to follow reasonable management instructions.
As we move back towards “normality” employers are increasingly trying to find their feet with the new rules. We’re always here to support employers, and our HR packages on fixed monthly fees mean that we are always on hand to answer these kinds of questions as soon as they crop up, without having to worry about increasing costs.
Click here to listen to our MD Jodie Hill on BBC Leeds speaking more on this topic.
Please do get in touch with us by emailing Jodie.email@example.com and we’d be happy to quote for our HR support or to answer one-off enquiries as they arise.