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Employees returning from Spain

Employees returning from Spain

Following a significant change over the last week in both the level and pace of confirmed Covid-19 cases, Spain has been removed from the list of countries where people do not have to self-isolate when arriving into the UK.

As a result, the Government has recently re-imposed strict measures for anyone including employees returning from Spain, amid an increase in coronavirus cases in the UK’s top holiday destination.

The strict new rules were imposed at 11pm on Saturday 25th July, meaning many holidaymakers already in Spain will need to quarantine (not leave their home to go to their workplace) for 14 days on their return to the UK.

The FCO is advising against all but essential travel to mainland Spain – this advice does not cover the Canary Islands or the Balearic Islands because travel advice is based on the risk to the individual traveller and COVID-19 infection rates being lower there than mainland Spain. However, at the time of writing, there is a requirement to self-isolate if an employee has visited Spain including the Balearic or Canary Islands.

There are certain roles that are excluded from this requirement.  These can be found here.

Options

  • If the employee can work from home, they can continue to do so. An employer should not require or permit an employee to physically attend work during quarantine, as to do so would be encouraging an employee to commit a criminal offence.  Breach of quarantine can result in a £1,000 fine for the employee. Additional breaches can attract fines of up to £3,200.
  • If they are unable to work from home, then the official advice from the Government is that the employee is not entitled to statutory sick pay (SSP) when self-isolating after entering or returning to the UK. Therefore, decision will need to be taken by their employers as to how to treat the 14 days absence.

The Government is however, relying on the goodwill of employers.  They are urging employers to show flexibility to employees who will have to self-isolate due to the changes to quarantine rules.

Further holiday (current year) – in the event that an employee cannot work from home and the employee has sufficient holiday days remaining for the current leave year, the employee may (with the employer’s consent) take the quarantine period as holiday leave.

Further holiday (brought forward) – An employer may also allow the ‘‘carry forward’ of some holiday entitlement from the next/2021 holiday year though there is no legal requirement for employers to permit this and they must also not fall foul of the statutory holiday requirements for each leave year.

Unpaid leave – should the employee have insufficient holiday and be unable to work from home, the leave may be treated as unpaid leave.

Furlough? – For an employee to be placed on furlough (or flexible furlough), they must have already undertaken a period of qualifying furlough before 1 July 2020.

An employee who has previously completed a qualifying period of furlough and has returned to the UK to find that they are to undertake a period of quarantine, may seek to be placed on furlough for that period.

There was Treasury Guidance issued on the Coronavirus Job Retention Scheme (“CJRS”) which stated “No CJRS claim may be made in respect of an employee if it is abusive or is otherwise contrary to the exceptional purpose of CJRS”.

The CJRS guidance confirms that the purpose of the CJRS scheme is to assist employers who cannot maintain their workforce because their operations have been affected by coronavirus.

Therefore, it may be questionable as to whether the employee’s absence is caused by either the coronavirus pandemic, or their decision to take holiday leave abroad. As the position is unclear and, pending government guidance, placing an employee of furlough carries a risk that a claim under the Coronavirus Job Retention Scheme may be unlawful. That said the ACAS published guidance does suggest that an employer can furlough an employee who is subject to quarantine.

It should also be noted that from 1st August 2020, employer’s contribution towards the costs of the furlough leave will be increasing.

The decision to place an employee on furlough leave is for the employer to make and will be subject to the rules of the CJRS.

Whilst quarantined, if the employee develops coronavirus symptoms during quarantine, they will need to contact the NHS Track and Trace.  If the NHS Track and Trace test comes back as negative, the employee will still need to complete the 14-day quarantine period.

  • If the test comes back as positive, the employee will need to complete either 7 days self-isolation, or the 14-day quarantine period (whichever is the longer).
  • An employee will be entitled to SSP from day 1 if they test positive for coronavirus. If they are otherwise unwell during quarantine, they will be entitled to SSP (£95.85 per week) from day 4 in the usual fashion.
  • An employee may be entitled to enhanced company sick pay depending upon their contract of employment.

Further Implications

The Government has made it clear that it would act immediately to remove a country [from quarantine exemptions list] where necessary to contain the virus, including if the public health risk of people returning from a particular country.  The current situation regarding Spain goes to demonstrate how quickly circumstances are changing.

A government spokesperson said:

“The Joint Biosecurity Centre together with Public Health England have updated their coronavirus assessments of Spain based on the latest data. As a result, Spain has been removed from the lists of countries from which passengers arriving in England, Scotland, Wales and Northern Ireland are exempted from the need to self-isolate.

Protecting public health is our absolute priority and we have taken this decision to limit any potential spread to the UK.

We’ve always been clear that we would act immediately to remove a country where necessary. Both our list of quarantine exemptions and the FCO travel advice are being updated to reflect these latest risk assessments.”

Summary

If an employee chooses to go overseas, having previously been told not to by their employer, and that holiday results in a 14-day absence through quarantine from the workplace, the employer could consider disciplinary action.

As stated earlier, the Government has encouraged employers to act ‘sympathetically’ to employees’ subject to quarantine, and so that request is not an instruction.

It may be helpful to put in place a policy to deal with employees taking foreign holidays that may result in quarantine. Disciplinary action may be most appropriate where the leave is treated as unauthorised, particularly when a company policy has been put in place regarding the treatment of quarantine.

If you need further clarification and advice on managing employees returning from overseas and needing help to know how to manage, please get in contact with our HR Experts today.

It has been an absolute pleasure to work with Carole over the past few months. She’s incredibly knowledgeable about HR / personnel issues and has supported us by providing up-to-the-minute, relevant and essential employment advice. She’s helped our recruitment processes no end, ensuring we are fully compliant with the ever changing UK employment laws.

In particular, access to the MAD-HR toolkit has been very useful, and specifically supported our need for a range of documents. We’re currently growing our business and team, and the MAD-HR toolkit has meant that we have the best systems in place to build upon. I would not hesitate in recommending the services of MAD-HR and the MAD-HR toolkit!