In recent weeks we have seen the “air bridges” so recently established with countries such as Spain, Luxembourg, France and the Netherlands slam closed on short notice with thousands of travellers then rushing to return to the UK to avoid the need to quarantine for 14 days. This has left many employers wondering how to manage the business risks arising from the travel uncertainty.
Some commentators have expressed a lack of sympathy for travellers, citing the re-imposition of quarantine measures as an entirely foreseeable risk. However, for many people international travel is necessary for work, to commute, to visit family or due to the financial implications of cancellation.
Employers who have never asked their employees to confirm their vacation travel plans before may now be considering doing so. Some may be considering instructing their employees not to travel to certain destinations or contemplating disciplinary action against those who do. Others will be wondering whether they need to pay employees who are unable to attend work due to quarantine.
So what actions are open to employers?
In the first instance, it will be reasonable for many employers to start asking for details of their employee’s travel plans. If employers don’t know that an employee has been travelling to a high risk country they won’t be able to protect the health and safety of their colleagues. It may also be necessary to understand if someone is at higher risk of quarantine for business continuity reasons.
It should be borne in mind that some of the data collected is likely to be special category data as it will relate to health so it would be advisable to carry out a data protection impact assessment. Employers may wish to refer to the useful guidance which the ICO has issued on collecting health data in relation to Covid-19 which is helpful here.
In most circumstances it is unlikely to be reasonable to instruct employees not to travel overseas in their personal leisure time or discipline them for doing so. Indeed, newly issued government guidance available at https://www.gov.uk/guidance/self-isolating-after-returning-to-the-uk-your-employment-rights has stated that “Dismissal should be a last resort”.
However, employers can make clear to their workforce what the implications could be for them in relation to pay if they were to travel overseas for personal reasons and then be unable to return to work as a result. There is also clearly a distinction to be drawn between someone who travels knowing that quarantine will be required and someone who is caught by a change in the rules.
If employees are able to work from home, they should be paid as normal. If they have additional annual leave which they can use up this could also be a way to deal with the unexpected absence. However, it is unlikely to be possible for employers to insist that employees use up their annual leave due to the advance notice requirements under the Working Time Regulations 1998.
Statutory Sick Pay is payable where individuals are isolating due to infection or having been in contact with someone infected with Covid-19 but is not payable for quarantine after overseas travel. Contractual sick pay is subject to its terms but may only cover where employees are actually sick and may be at an employer’s discretion at any event. Employees could therefore find themselves on zero pay in these circumstances and it would benefit all parties to be clear on this risk.
However, employers should also carefully consider the personal circumstances of employees when applying any blanket policies regarding international travel as these can give rise to the risk of indirect discrimination claims, for example, if employees were foreign nationals travelling home.
With Covid-19 likely to be with us for a long time to come, and with concerns about an upturn in cases across Europe and beyond it would be prudent for employers to consider and review their policies on travel now, if they have not already, to address the potential impact on their business.
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