Childcare Counsel - employee holidays during Covid

Who is required to quarantine?

From 17 May 2021, red, amber and green list rules apply when entering this country from overseas, imposing three levels of quarantine obligations depending on where the employee has visited.

What pay is an employee who is quarantined on return from overseas entitled to?

If an employee who has to quarantine can work from home during their self-isolation, they should continue to be paid as normal.

If they cannot work from home, the position in respect of pay is not clear. Arguably such an employee is not able to work and so the implied right to be paid, which may be relevant if there were no legal requirement to self-isolate, would not apply.

However, it may be arguable that, where an employee is subject to a restriction of this sort, their ability to work is not affected. If the employee is ready and willing, and the inability to work is the result of a third-party decision or external constraint, any deduction may be unlawful depending on the circumstances.

An employee may argue that the Government restrictions mean their inability to work is involuntary and an external, unavoidable, impediment.

However, if the overseas trip were booked in the knowledge that there would be a period of self-isolation at the end of it, it may be very difficult to succeed in arguing that the inability to work is caused by an extrinsic factor over which they had no control. Different considerations may be needed depending on what ‘colour’ country the employee has visited and whether the colour of that country changed while they were on holiday, such as the recent change in travel advice for Portugal.

Are employees entitled to Statutory Sick Pay (SSP)?

This is unclear. There are two ways in which SSP could be triggered:

• The requirement to self-isolate is mandatory and underpinned by the criminal law. This means that it is possible that entitlement to SSP would be triggered under the deemed incapacity provisions in the Regulations. However, those provisions require that the reason for the restriction is that it is known or reasonably suspected that the individual is infected or contaminated by, or has been in contact with a case of, a relevant infection or contamination. It may be a stretch to argue that the mere fact of travelling would amount to a reasonable suspicion that they have come into contact with someone infected with Covid-19.
• It remains possible that further regulations will be issued to amend the schedule to the SSP regulations to include self-isolation on this basis. However, where an employee has been on holiday, they have arguably voluntarily accepted the risk and the requirement to self-isolate, and the Government may not be keen to fund periods of self-isolation which arise out of an individual’s voluntary decision to travel overseas.

Are employees entitled to be paid annual leave?

Employees in this situation may wish to use their annual leave during the period of self-isolation so that they are paid in full rather than SSP or nil pay. However, if the employee does not wish to take annual leave then it is unlikely that the employer could force them to take their statutory annual leave because they will effectively be confined to their house and the rest and relaxation purpose of annual leave may not be met.

What if employees don’t have enough annual leave left?

If employees do not have sufficient annual leave remaining then they would be entitled to authorisied unpaid leave.