Travlaw partner and head of employment Ami Naru weighs up some of the issues that may affect employers if staff are required to self-isolate after annual leave

Over the weekend the government announced that anyone returning to the UK from Spain would have to quarantine for 14 days. Spain may be the first of many countries subject to this requirement, imposed by the government at short notice as flare ups and second waves rise across the world.

The first and most obvious issue is how this 14-day period of quarantine is to be treated. Obviously staff cannot return to the workplace, but can they work from home? If they can, will this be a fair practice to adopt? It may cause injustice if you have staff who cannot work from home, for example if they work in a hotel or a shop.

For those that cannot work from home, the options available are to use annual leave or unpaid leave. Some employers have adopted a simple rule for all staff whether they can work from home or not, that they will have to take unpaid leave or use annual leave if they are required to go into quarantine, to counteract this unfairness.

Naturally if all your staff can work from home, then you may wish to allow staff to work from home during the period of quarantine to ensure business continuity, which will particularly be the case if you have someone in a business critical role.

Otherwise an employer will potentially be faced with a two week period of annual leave, then a 14-day quarantine period, which would be a month of that role potentially not being undertaken.

What about pay?

In terms of pay, if a staff member has to quarantine and cannot work from home there is no entitlement to pay. Annual leave, unpaid leave or potentially furlough would be the options to be explored here.

Having said that, given that overseas trips are common in the travel industry, what if the employer requested the staff member to go abroad, as a result of which quarantine is required?

In such circumstances the staff member will feel a little disgruntled at having to use annual leave or unpaid leave if they cannot work from home, so it would probably be sensible to pay such a staff member to avoid a grievance or constructive dismissal claim. It is worth noting that at this stage there is no statutory sick pay available for a period of quarantine in these circumstances.

Helping to steer decisions

In the same way that employers do not tell staff what to do in their free time an employer, rather than tell staff not to travel to such countries that are on the government quarantine list, could discourage travel to such countries by outlining the consequences in relation to pay and working arrangements in the event of having to quarantine.

In theory an employer could also cancel the holiday request, if there is enough time, namely by giving as much notice as the leave requested, but this is likely to be an unpopular move with staff, especially if they have made plans. This decision needs to be weighed up carefully.

Finally, whilst not turning up for work is grounds for dismissal, I think that most employment tribunal judges will have some sympathy for those with over two years’ service (having unfair dismissal rights), that may be dismissed in these circumstances, particularly where the quarantine rule was imposed whilst the staff member was on holiday.