Spain back on the quarantine list: Counting the cost of the Costas

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The Government announcement was made during the evening of 25 July 2020, and the removal of Spain from the UK’s travel corridors exemption list took effect at midnight on 26th July, giving most holiday-makers literally hours to try to get an immediate flight home, or otherwise face a 14-day draconian quarantine period following their return to the UK or risk a £1,000 fine.

The quarantine restrictions are very extensive, and within 48 hours before arrival in the UK, people must submit an online passenger locator form, which includes details of their travel back to the UK, booking references and the address they will be staying for the first 14 days in the UK. This form means that the quarantine period cannot be avoided by travelling home via currently exempt countries, such as France.

Once through customs, people will then be required to travel straight to their quarantine address, only using public transport if there is no other option.  Once home, the limits are extraordinary stringent, and persons must stay in the address for the full 14 days starting on the first complete day back in the UK, stay away from others, and have food, medicines and necessities delivered online or dropped off by friends and other family.  No visitors, including friends and other family are permitted, unless they are providing essential care.

Unlike the height of lockdown in March and April, those in quarantine cannot even leave their house for exercise and must stay in their home or garden, dogs cannot be walked, and persons can only leave their address in very limited exceptional circumstances. Unless working from home is possible, it will be impossible for those in quarantine to attend work without breaking the law and risk a £1,000 fine.

Much has been made of the lack of guidance or warning put out by the Government over this issue. The only comments as regards those workers is as follows:

“The government is urging employers to be understanding of those returning from Spain who now will need to self-isolate.”

Other than asking employers to be understanding, there is unfortunately little at the moment which protect workers who find themselves in this difficult position – particularly those with less than two years’ service who have fewer rights and recourse against dismissal than those with more seniority.

The Foreign Secretary said that:

“If someone has followed the law in relation to quarantine and self-isolating in the way that they should, they can’t have penalties taken against them…”

Sadly, there is little in statute or previous caselaw that supports this. Clearly, an employee with two or more years’ service will be unfairly dismissed if their employment is terminated due to being forced into quarantine without prior warning. However, there is no obligation on employers to pay the wages of absent employees if they are not sick, meaning many will have no choice but to use up further annual leave to maintain an income. Also, those paid based on hours worked, such as zero hours and shift workers, will be particularly impacted during quarantine.

The Government will hopefully introduce fresh legislation to protect workers in this situation against dismissal, and provide them with a minimum income.  Our analysis is that an employee with less than two years’ service who is dismissed for absence purely due to commencing a quarantine period through no fault of their own will have no legal recourse other than payment of their notice pay.

Can those under quarantine claim statutory sick pay (SSP)?

At the moment, no. The Government has made clear that employees cannot claim SSP if they are self-isolating after entering or returning to the UK as part of quarantine and do not need to self-isolate for any other reason.  However, certain employees can claim Universal Credit for this period.  Given this current anomaly, we anticipate that many employees will report even the mildest of symptoms displayed by themselves or a member of their household so as to commence a period of self-isolation for medical reasons and access payments of SSP, and will inevitably encourage false reporting of illness, or breaches of their quarantine, to enable a continuation of some form of income.

Could they take it as holiday?

There is nothing specific to prevent some or all of the additional 14 days of quarantine being taken as annual leave, but this will be specific to each employer and depends on the amount of leave an employee has left and planned for the rest of the year. This will likely come at a time where someone will have already been on holiday for a few days, and many employer policies prevent holiday periods of 14 or more continuous days being taken without prior approval. On the basis that many holidaymakers will have taken 10 working days leave before returning to the UK, an employer will be required to authorise 20 consecutive days holiday to allow for a further 2-week quarantine which wipes out the most employees’ annual holiday entitlement.

The key thing here will be communication and reasonableness. The best option is for holidaymakers currently facing the prospect of quarantine to discuss the matter with their employers to see what may be done, and in exceptional circumstances, employers may choose to permit extended periods of authorized, paid leave if working from home is not possible – but there is currently generally no legal obligation to do this.

Could those workers be furloughed?

There is the option of furlough leave, but will only be available to employees who had previously been furloughed for at least 3 weeks before 30 June 2020, and the Scheme is in place only until 31 October 2020. Their absence from work is a direct consequence of the coronavirus pandemic, and SSP is not otherwise available during quarantine, meaning furlough in these circumstances is arguably a legitimate use of the Scheme.  However, employees have no right to insist on being furloughed. Besides, from 1 August, employers will incur costs in furloughing employees, namely employers’ national insurance contributions for their furlough pay, and further 10% and 20% contributions to furlough pay commencing on 1 September and 1 October respectively.

So, there will inevitably be cases where employers would err on the side of caution and rather place employees on unpaid leave or require them to use up their remaining holiday during periods of quarantine, than replace them on furlough leave. Whilst furlough will be a vital line of financial support, it only provides partial financial solution to employees, as it is capped at 80% of normal pay, and subject to a maximum £2,500 per month. Higher earners will therefore be disproportionately impacted by being placed on furlough for two weeks.

Other solutions?

The ongoing uncertainty and chaos caused by the pandemic, and rising level of infections in Europe in currently exempt countries, means that quarantine will become an increasing issue during the summer holiday season and not just for visitors to Spain.  No doubt some employees will cancel foreign trips due to the risk of being quarantined.

It may be prudent for employers to ascertain which of its employees are still planning to travel abroad in the coming months and agree contingency plans for their potential quarantine, including facilitating short-periods of working from home or projects which can be conducted at home if necessary.  If working from home in any form is impossible, employers should consider communicating quarantine and self-isolation policies. These should set out how such absences will be managed, if any minimum level of pay will be maintained. and clear rules on taking additional holiday during these periods to supplement income.

The level of restrictions during quarantine on what, in most cases, will be asymptomatic employees, are as extensive and far reaching as those self-isolating for 7-14 days for showing symptoms personally or in their household. Yet, the UK Government has inexplicably failed to legislate any degree of support or protection for those in quarantine, which in turn makes breaches of quarantine more likely and undermines the policy.

It is therefore hoped that urgent legislation is passed to provide the same entitlement to SSP as to those self-isolating for medical reasons, and statutory protection from dismissal introduced for anyone restricted from working due to self-isolation regardless of their length of service, whether as a result of quarantine or displaying symptom themselves or within their household. Without this protection, such employees with less than two years’ service are highly vulnerable to dismissal triggered by events wholly outside their control without any recourse. Many already struggling employers planning redundancies may find it too tempting to dismiss employees who cannot work when in quarantine.