Employees Returning from Spain - Q&A

You will no doubt have heard that from 25 July 2020 anyone returning from Spain (including the Islands) will be required to self-isolate for 14 days in order to limit the spread of Coronavirus. The Government suddenly introduced this requirement on less than a day’s notice. Therefore, many UK travellers already on holiday in Spain have been caught with no time to return to the UK before the requirement came into force. So as an employer how should you deal with an employee currently stuck in or returning from Spain?

1.   Legal position 

It is unlawful to break the self-isolation rules and if you do, you could face a fine of up to £1,000. You cannot get around the self-isolation requirement by undergoing a coronavirus test and returning to work if your test result is negative upon your return from Spain. Furthermore, the Foreign Secretary Dominic Raab has said “you cannot be penalised in this country lawfully for following the rules and the law that’s in place” and employers ought to treat self-isolation employees in such circumstances “sympathetically”.

2.   What happens to an employee’s pay? 

The key question is clearly what happens to pay if an employee is unable to work for 14 days after returning from Spain? 

The short answer is there is no entitlement to pay. If the employee can work from home, they should do so and be paid as usual. The employee should not attend the workplace because it is a criminal offence to refuse to self-isolate. However there is no legal requirement to pay an employee who is unable to work from home but cannot come in to work. An employee would also be unlikely to be covered by any company sick pay. There is also no entitlement to statutory sick pay as SSP has not been extended to travellers returning from Spain in such circumstances. It remains to be seen whether amendments will be made to cover this potential situation. Employers may wish to consider whether paying people for this fortnight, at least those already in Spain when the quarantine was announced as this might lessen the risk of employees ignoring the quarantine, and then potentially infecting colleagues. 

3.   Extending annual leave 

An employee could extend their annual leave period by 14 days upon returning from Spain if he/she has sufficient holiday entitlement remaining in order to be paid in full for the quarantine period. However, consideration would have be given to covering the employee’s duties during this unexpected and extended period of leave.

4.   Can you stop an employee travelling to Spain? 

The Foreign and Commonwealth Office is currently advising against all but essential travel to all of Spain. So what can an employer do if an employee decides to travel to Spain for a pre-booked holiday against the FCO’s advice? 

You cannot stop an employee travelling to Spain during their annual leave. However, you could consider revoking previously authorised annual leave if the employee’s period of leave would be too extensive to cover if the 14 day period is tagged on to the end of, say, a week long holiday. However, you must provide the requisite notice to cancel pre-authorised leave, which is the same number of days as the holiday the employee wanted to take. For example, you would need to give 7 days’ notice to cancel a 7 day holiday. You should think very carefully before taking this step as no doubt the employee will have spent a good deal of money on the holiday and may consider this action to be sufficient to constitute a fundamental breach of the implied duty of trust and confidence and allege constructive unfair dismissal.  When implementing any decision to revoke a pre-authorised holiday, you should also have regard to the individual’s personal circumstances and reasons for the leave to ensure you avoid a successful discrimination complaint/claim.

5.   What if an employee takes a Covid test that is negative? 

Our understanding is that even a negative test upon returning from Spain does not remove the requirement to quarantine for 14 days (as noted above). This is on the basis that the employee may not be showing symptoms at the time of the test.