Travelling from Spain – new self-isolation rules and employment

From 8 June 2020, anyone arriving in the UK from overseas has been required to self-isolate for 14 days. This does not apply to countries included on the “travel corridors” list.  With the exception of Portugal, the list included all popular European holiday destinations – until now.  On 25 July 2020 the government suddenly announced that Spain was being removed from this list, and all people returning to the UK from Spain (including the islands) from midnight on 25 July would need to self-isolate for two weeks.The Foreign & Commonwealth Office (FCO) is also advising against all but essential travel to all of Spain (having initially limited this to mainland Spain only).

It is unlawful to break the self-isolation rules.  A failure to comply in England, Wales and Northern Ireland could result in a significant fine of £1,000. In Scotland, there is a £480 spot fine, rising to £5,000 if the case goes to court. There is a fuller discussion of the relevant legal issues for employers in our previous article, “Test, trace and travel – new self-isolation rules and employment 

The original announcement about the requirement to self-isolate on return from overseas travel was made on 22 May, giving travellers more than two weeks’ notice of the change.  In contrast, the announcement about travel from Spain was made on less than a day’s notice.  Many employees will already have arrived in Spain for their holidays, having travelled when the country was included in the travel corridors list.  Others will have booked holidays that are coming up very shortly.  Although the FCO has advised against all but essential travel to mainland Spain, meaning many flights and holidays will already have been cancelled, the same advice does not apply to the Spanish islands.

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 self-isolating employees “ought to be treated sympathetically” by employers. But what are employers actually required to do if an employee is unable to work for 14 days after returning from Spain?

What pay is an employee entitled to? 

If the employee can work from home, they will be able to work and be paid as usual. But the employee is not able to attend the workplace, because it is a criminal offence to fail to self-isolate.  This means there is no legal requirement to pay an employee who is unable to work from home.

This situation is unlikely to be covered by an employer’s enhanced sick pay policy or any other provisions on pay.  There is also no entitlement to statutory sick pay (SSP) – unlike with compulsory self-isolation under rules on households with symptoms and the test and trace system, SSP has not been extended to returning travellers.

If employees are obliged to self-isolate after a period of work travel to Spain, it would be reasonable to pay for this period as the employee’s situation results from the requirements of their job.

Can the employee take extra holiday?

If the employee has sufficient annual leave remaining, they may wish to add this on to the end of their original holiday in order to be paid in full for the self-isolation period.  An employer could agree, and this may be a practical solution for employees who are unable to work from home.

This would result in employees having extended periods away from work, so employers may wish to distinguish between employees who have been caught out by the rule change and had already travelled, and those who chose to travel later despite the requirement to self-isolate on their return.

Can employers stop employees from travelling to Spain?

Employers can revoke pre-authorised leave by providing notice of the same number of days as the holiday the employee wanted to take (e.g. five days’ notice to cancel five days of leave). You should, however, proceed with caution before cancelling pre-booked annual leave to prevent overseas travel. Doing so without a proper business reason and appropriate compensation could be a breach of the implied duty of trust and confidence. (The implied contractual duty not to unreasonably destroy or damage the relationship of trust and confidence between employer and employee.)

With employees who are planning to travel to Spain in the near future, employers who are unable to manage workflow without a specific employee for the length of their proposed holiday plus the 14-day isolation period might be able to refuse (or revoke) holiday approval on those grounds.  This provides a clear business reason. A recent amendment to the Working Time Regulations allows employees to carry over holiday for the next two years if it has not been reasonably practicable to take it in the current holiday year due to the effects of coronavirus. While it is not clear that the 14-day self-isolation period would in itself make it not reasonably practicable to take holiday, the need for workforce cover is listed as a relevant factor in the government’s guidance on holiday entitlement and pay during coronavirus.

It is important to appreciate that not everyone who plans to travel abroad will be doing so to enjoy a holiday. There may be specific circumstances where an employee is required to travel, for example to visit a sick relative or attend a funeral, which could be treated as exceptions. It is also important to be clear and consistent in order to avoid grievances or complaints about discrimination.

What if an employee turns up to work?

It is a criminal offence to attend work during the compulsory self-isolation period, and any employee who attempts to do so should be sent home immediately.

There is no specific legal requirement on employers to check where employees have travelled during annual leave.  However, general health and safety duties mean that employers should enforce the self-isolation rules in order to protect others in the workplace if they know or suspect that an employee has just returned from Spain.  It may be advisable to ask all employees returning to the workplace after annual leave to confirm that they have not returned from Spain (or another country that is not on the travel corridors list) or are otherwise required to self-isolate for any reason.

Do employees have a right to work from home?  

There are many jobs which simply cannot be done from home, meaning this is not an option for some travellers.  As lockdown has eased, many employees who were able to work temporarily from home have also now started to return to the workplace.  A self-isolating employee might ask to work from home while colleagues are back in the office.  Although there is no “right” to home working, and employers can specify an employee’s place of work, it would generally be reasonable to allow home-working for a 14 day period if the employee’s job can be done effectively from home – particularly if remote working was allowed during full lockdown. 

What if the employee is trapped in Spain?

Some travellers caught up in this situation may find that flights have been cancelled and they are trapped overseas for an extended period.  It may be possible for an employee in this situation to work remotely.  If not, they would have no entitlement to full pay or sick pay (unless actually unwell), leaving the options of additional holiday or unpaid leave.  If the travel was work-related, the employer’s policy might provide for pay – and in any event it would be reasonable to continue to pay an employee who is trapped abroad after travelling for work.

What next?

It looks likely that other countries may also be removed from the travel corridors list if infections spike elsewhere, as has been widely predicted.  The Spanish situation has caused particular problems because the rules have changed in the middle of summer holiday season.  But we can expect more short-notice rule changes over the next few months.

Staycation anyone?

Since publication, new government guidance on ‘Self-isolating after returning to the UK: your employment rights’ has been published. It is brief and does not add anything to what is set out above. The FCO continues to update and amend the list of countries which are exempt from the advice against ‘all but essential’ travel.