Holiday from Hell: Quarantine and employment rights

Given the challenges of living through the pandemic, it’s hardly surprising that so many opted to take a holiday abroad as soon as they could. But many holidaymakers are now finding themselves unexpectedly having to quarantine for 14 days on their return. What does this mean for their employment rights?

In this article, references to “employees” include references to both employees and workers, unless otherwise stated.

The quarantine requirements

On 8 June 2020, the Government required anyone arriving into the UK to self-isolate for 14 days at a specified address. It created “travel corridors” to exempt countries where the risk of contracting Covid-19 was deemed to be lower. However, as a result of rising infection cases in Europe, the list of exempt countries has frequently been changed at short notice. Recent examples of this include Spain, France, Luxembourg and Belgium being removed from the exempt countries list, as well as those further afield such as the Bahamas and Trinidad and Tobago.

Under the Health Protection (Coronavirus, International Travel) (England) Regulations 2020, anyone arriving in the UK from outside the Common Travel Area (UK, Ireland and Crown Dependencies) is require to self-isolate for 14 days. The requirement is compulsory, and failure to comply is criminal offence punishable with a fine of up to £1,000.

A person subject in quarantine must not leave their specified address except in limited circumstances, which include seeking urgent medical assistance, escaping a risk of harm, fulfilling a legal obligation such as attending court, or in exceptional circumstances obtaining basic necessities such as food.

Money matters

It’s clear from the quarantine requirements that an employee cannot leave their specified address to go to work.

That may be all well and good for employees who have been able to work at home and have the continued support of their employers to do so. Indeed, many large employers are still not requiring their employees to return to the workplace. Such employees will of course be entitled to be paid as per normal.

But what about the employee who cannot work from home? They may be ready and willing to work, but they are not able to work as they are prevented from doing so by the quarantine requirements. In those circumstances, are they entitled to be paid?

The employment law answer would be no, because an employee is only entitled to be paid if they ready, willing and able to work. In North West Anglia NHS Foundation Trust v Gregg [2019] IRLR 570, the Court of Appeal held that in a case where a Consultant Anaesthetist was subject to an interim suspension by the Medical Practitioners Tribunal pending an internal investigation, and whilst the police investigated deaths of patients under his care, the Trust was obliged to pay him his salary. The Court of Appeal reviewed the authorities in relation to being “ready, willing and able” and concluded at paragraph 52 that:

“(a) If an employee does not work, he or she has to show that they were ready, willing and able to perform that work if they wish to avoid a deduction to their pay (Petrie). (b) If he or she was ready and willing to work, and the inability to work was the result of a third-party decision or external constraint, any deduction of pay may be unlawful. It will depend on the circumstances.”

When looking at what circumstances might justify the payment of wages where the employee is not able to work, the Court of Appeal considered that such circumstances would include being unable to work because of an involuntary or unavoidable impediment. However, can going on holiday and voluntarily leaving the country, even where the changes in the law take effect at short notice, really be described as an involuntary or unavoidable impediment? Employers would easily be able to argue that the problem could have been avoided by a staying at home or holidaying in the UK.

The ACAS guidance on quarantine supports this approach whilst suggesting possible practical solutions. The employee who finds themselves caught out by quarantine may be able to agree with their employer to take additional annual leave and therefore receive holiday pay – but they will need to have enough annual leave remaining to avail themselves of this option. Also, employers are entitled to be given sufficient statutory notice (twice as many days’ notice as days to be taken) by an employee, and an employer also has the statutory right to refuse the request for annual leave. Both provisions can of course be circumvented by agreement.

Further, an employer may agree to put the employee on flexible furlough for the quarantine period if they have previously been furloughed at least once. Again, this approach also depends on the willingness of the employer to be flexible and to accommodate their employees who they may regard as having made themselves intentionally unavailable for work by travelling abroad.

If the travel was work related, then the employee would be entitled to be paid if they end up in quarantine. Likewise, if the employee has travelled because of a family emergency or bereavement, the employer should consider unpaid leave or special paid leave.

Employees who are quarantining after returning to the United Kingdom are not even entitled to statutory sick pay. Although the Government has extended the definition of “deemed incapable for work” to include some Covid-19 related circumstances, such as where people are self-isolating where someone in their household is symptomatic or following a notification from the NHS Test and Trace service, it has not extended it to cover people who are in quarantine after returning from travel abroad.

Remedies

What if the worst happens and the employee is disciplined or even dismissed because they are unable to work because they are in quarantine?

Employees have the right not to be subjected to a detriment in health and safety cases under section 44 of the Employment Rights Act 1996. However, to qualify for protection under s44, employees have to demonstrate that they absented themselves from the workplace or refused to return to the workplace because in “circumstances of danger” which they “reasonably believed to be serious and imminent and which [they] could not reasonably have been expected to avert”, they left the workplace, or refused to return to it. Section 44 also deals with taking appropriate steps to protect themselves or others from such danger (see s44(1)(e)).

This does not offer employees a free rein to simply refuse to turn up to work, vaguely citing the pandemic as the reason, and expect there to be no repercussions.

Although being quarantined after travelling abroad is done to protect others from a pandemic which has created a serious and imminent danger, it is precautionary rather than reactionary. Section 44 is aimed at dealing with an unsafe workplace and “circumstances of danger” rather than the situation where it is the employee who may possibly be a potential health and safety risk and is required to quarantine. Section 44 is unlikely therefore to assist an employee if they are subject to a detriment, such as being disciplined or not paid, because they have to quarantine when they return from travel outside of the UK.

What about whistleblowing? Section 43B ERA 1996 provides that employees have the right not to be subject to detriment for making a protected disclosure (often described as “whistleblowing”). Such disclosures can include health and safety matters under section 43B(1)(d). Could an employee informing his or her employee that they have to quarantine because they have travelled to a country which is no longer on the exempt list amount to a protected disclosure? In theory, the employee could be disclosing information that if they did not quarantine and returned to the workplace, the health and safety of their colleagues is likely to be endangered or a criminal offence of breaching quarantine committed, but it is a difficult argument to run where quarantine is precautionary. In the normal course of events the employee is not going to be disclosing information that meets the statutory definition of a protected disclosure, because he or she will simply be informing their employee that they cannot attend work due to being quarantined. Further, any claim would be likely to fail on causation grounds, as it is likely that any disciplinary action would be because of the employee’s absence rather than any alleged protected disclosure.

What if they are dismissed? Although it might seem a bit far-fetched for someone to be dismissed for having to quarantine for 14 days, an employer might take the view that there were sufficient grounds for dismissal, perhaps because of conduct or some other substantial reason under s98(1)(b) ERA 1996.

The right not to be unfairly dismissed only applies to employees after two years continuous service Workers including gig economy workers and zero-hours contract workers are therefore excluded from protection, even if they are “limb b” workers who are well-integrated into the workplace, unless they could run a challenge to their employment status and argue that they are actually employees.

For those who are employees but do not have the required continuity of service, they could argue that they were automatically unfairly dismissed within the meaning of s 100 but the same problems raise their heads as under section 44, namely, that it would be difficult to persuade a tribunal that the employee has a reasonable belief that their attending the workplace poses a serious and imminent danger to other by reason of them quarantining after travel abroad.

For those employees dismissed with sufficient continuity of service, they are entitled to bring claims of unfair dismissal. However, the employer is likely to defend such cases on the basis that the dismissal was fair for either conduct or some other substantial reason.

Employers may argue that such dismissals were potentially fair if they can establish that the dismissal was for a conduct reason within the meaning of section 98(1)(b) of the ERA. For example, if an employee went to a non-exempt country on holiday, but didn’t tell their employer and returned to the workplace without quarantining, that might lead to a dismissal for gross misconduct. If the employer can show that they had a genuine belief based on reasonable grounds following a fair investigation that the employee had lied to them about where they had been on holiday, then the dismissal may be fair. It may be that some employers will change their policies so that holidays cannot be taken to non-exempt countries. The “range of reasonable responses” test gives employers a broad discretion and as a result generally operates against the employee.

However, if the holiday was authorised and the quarantine position suddenly changed, so that the employee had to unexpectedly quarantine on their return, it would be hard for the employer to argue that such a dismissal was reasonable in all of the circumstances.

Likewise, if the employer can show that the dismissal was for “some other substantial reason” within the meaning of section 98(1)(b) of the ERA, then the dismissal will still potentially be fair. But it is difficult to see that a 14-day quarantine, which could be dealt with by a sanction less than dismissal or by the employee not being paid, is likely to be substantial enough to persuade a tribunal that it is reasonable for the employer to have treated the reason as sufficient to dismiss.

The right not to be unfairly dismissed only applies to employees after two years’ continuous service. Workers, including gig economy workers and zero-hours contract workers, are therefore excluded from protection, even if they are “limb b” workers who are well-integrated into the workplace, unless they can run a challenge to their employment status and argue that they are actually employees.

Employees without two years’ service could try to argue that they were automatically unfairly dismissed within the meaning of s100 ERA, but the same problem arises as under section 44 ERA, namely, that the statute is designed to protect employees from dangers in the workplace, not to protect the employee who arguably chooses to bring a danger (from Covid-19) into the workplace.

Given the above, many employees may feel that they no longer want to risk travelling abroad for holidays if they are likely to have to quarantine on their return. Employees may seek to cancel their time off. Employers cannot insist that an employee takes their pre-booked leave, although they are entitled to ask employees to take leave during the leave year.

Employees may wish to avail themselves of the new right to carry over up to four weeks of annual leave under the Working Time (Coronavirus) (Amendment) Regulations 2020 on the basis that it was not reasonably practicable to take leave in 2020 because of the requirement to quarantine. However, that argument can easily be met by suggesting that the employee could holiday in the United Kingdom. Those provisions were designed for cases where, for example, the employer is not able to arrange workforce cover during the pandemic, or would impact upon society’s response to the coronavirus situation rather than a decision to postpone travelling abroad because of quarantine requirements.

Taking into account the potential quarantine employment law pitfalls, many may choose to do battle with the British weather instead of risking an overseas break for the foreseeable future.