The law is constantly changing and the position set out in this paper may not be current. You should not rely on this or other ELA papers as a comprehensive statement of the law but should always seek advice if you require it from a qualified lawyer. ELA does not give legal advice.

Introduction

The Employment Lawyers Association’s ("ELA") Legislative and Policy Committee has set up a standing working party to respond and make recommendations on measures relevant to employment law during the current coronavirus crisis.

ELA is a non-political group of specialists in the field of employment law and includes those who represent claimants and respondents in courts and employment tribunals.  It is not ELA's role to comment on the political or policy merits or otherwise of proposed legislation or regulation, rather it is to make observations from a legal standpoint.   ELA's Legislative and Policy Committee consists of experienced solicitors and barristers who meet regularly for a number of purposes including to consider and respond to proposed legislation and regulations.

This paper was written by Clare Fletcher, Slaughter & May and member of the ELA Covid-19 Working Party.

On 8 June 2020 new quarantine rules came into effect, requiring any travellers arriving into the UK (with some limited exceptions) to self-isolate for 14 days. This measure has been implemented via the Health Protection (Coronavirus, International Travel) (England) Regulations 2020. A breach of self-isolation could result in a £1,000 fixed penalty notice in England (Scotland and Northern Ireland have their own enforcement measures).

The government has also published guidance on how to self-isolate when you travel to the UK. It confirms that individuals who are self-isolating “cannot go out to work”. However, there are a number of areas where the impact of the new quarantine rules on employers and employees are unclear, and further guidance would be welcome:

a) Pay during self-isolation: Although the guidance is silent on this, the implication is that where employees are able to work from home during the 14 day self-isolation period, they should do so (and would be entitled to be paid as normal). However, if employees are unable to work from home, it is not clear whether or how they should be paid.

b) Sick pay during self-isolation: It is not clear whether the recent COVID-related amendments to the Statutory Sick Pay (General) Regulations 1982 will apply to individuals who are self-isolating under the new quarantine rules, in order to entitle them to SSP during self-isolation (if they cannot work from home).  The government has not yet published any regulations to specifically extend entitlement to SSP in these circumstances, and has also not indicated whether it intends to do so. In the meantime, employers will need to consider if employees should be entitled to company sick pay, even if it transpires that there is no entitlement to SSP.

c) Other paid or unpaid leave: Employers may also need to consider allowing (or requiring) the employee to take additional annual leave, or unpaid leave, during the quarantine period. Whether this is possible will depend on the terms of individual contracts of employment and the employer’s policies and procedures, and/or what additional arrangements can be agreed with employees.

d) Restrictions on taking holidays: Although the prospect of foreign holidays currently seems very limited (the Foreign & Commonwealth Office (FCO) is still advising against all but essential international travel), this issue may become more problematic when the FCO’s advice changes and employees want to take holidays abroad. If at that point the quarantine rules remain in place, employers may feel unable to support employees being absent from the workplace for an additional 14 days on top of any holiday period. Aside from the pay difficulties outlined above, employers may be concerned about employees taking long periods of absence at a time when they are beginning to restart operations after the COVID-19 lockdown.

Employers do have the ability to restrict when employees take holiday, under Regulation 15 of the Working Time Regulations 1998, by providing notice of at least the same length as the holiday period. Employers may consider using this power to restrict employees taking holiday for as long as the quarantine restrictions remain in place. However, such a policy is likely to be unpopular from an industrial relations perspective, particularly with employees who struggle to take holiday at other times of year (such as those with school aged children). It is also highly questionable whether the employer could validly apply a restriction on taking holidays abroad as opposed to in the UK; this is unlikely to amount to a reasonable management instruction and could risk discriminating against certain groups of employees, for example those with relatives abroad.

e) Carry over holiday: Under the Working Time (Coronavirus) (Amendment) Regulations 2020, workers can carry forward their right to annual leave for two years, where it was not reasonably practicable for them to take their annual leave in the current leave year as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society). BEIS has published guidance on Holiday entitlement and pay during COVID-19, but this guidance has not yet been updated to consider the impact of the new quarantine rules. Neither has the ACAS coronavirus guidance on using holiday. It is therefore not clear whether the quarantine rules mean that it would not be reasonably practicable for a worker to take holiday in these circumstances, so as to entitle that worker to carry over their annual leave to the next leave year.

f) Duration of restrictions: The government has committed to review the quarantine restrictions on a three weekly basis; the first review will take place by 29 June 2020. It is not however clear on what basis the restrictions will be reviewed, or when any changes may take effect. This makes it difficult for employers and employees to plan for periods of annual leave in the coming months, at a time when they may also need to be factoring in the possibility of flexible furlough from 1 July.

Additional guidance and clarity on these issues would help employers and employees navigate the new quarantine rules more effectively.

Members of ELA Covid-19 Working Party

Co-chairs: Paul McFarlane, Capsticks; Kiran Daurka, Leigh Day

Shubha Banerjee, Leigh Day
Emma Burrows, Trowers & Hamlins
Sarah Chilton, CM Murray
Shantha David, Unison
Peter Edwards, Devereux Chambers
Clare Fletcher, Slaughter & May
Beth Hale, CM Murray
Howard Hymanson, Harbottle & Lewis
Nadia Motraghi, Old Square Chambers
Louise Skinner, Louise Skinner, Morgan Lewis & Bockius UK
Catrina Smith, Norton Rose Fulbright
Caroline Stroud, Freshfields Bruckhaus Deringer
David Widdowson, Abbiss Cadres