How should employers deal with employees returning from abroad?

How should employers deal with employees returning from abroad?

Posted by Carol Shaw, on August 28, 2020. Tags: ,

In this article, we highlight what employers are required to do with employees returning from abroad, where quarantine regulations have been imposed by the Government.

What pay is a returning employee entitled to?

Any employees required to self-isolate for 14 days after returning from abroad, should work from home (if possible) and receive their usual pay. If an employee comes into work during the self-isolation period, they must be sent home immediately. A failure to comply with the self-isolation rules is a criminal offence and can result in a fine of £1,000.

What if a returning employee cannot work from home?

If a returning employee cannot work from home, the position of what pay an employee is entitled to is unclear.  In the case of North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ 387, it was held that if an employee’s inability to work is involuntary or due to an ‘unavoidable impediment’ and the employee is in fact ready and willing to work, any deduction of wages is unlawful.  A returning employee who is required to self-isolate for 14 days may argue that the Government’s requirement to self-isolate is an unavoidable impediment.  As such, they may be entitled to pay.  

It is important to note that if employees were aware that they will be required to self-isolate for 14 days when booking their trip abroad, the above argument is unlikely to succeed given that their inability to work was not due to an involuntary impediment.  

Will a returning employee be entitled to Statutory Sick Pay?

If the employee cannot work from home, the position is also unclear on whether they are entitled to Statutory Sick Pay (SSP). There are two possible ways in which a returning employee can be entitled to SSP:

  1. Mandatory isolation or detention: Under regulation 2(1)(b) of the SSP (General) Regulations (‘SSP Regulations’) 1982, an employee will be entitled to SSP if they are forced to abstain from work due to a compulsory detention or restriction made under an enactment.In these circumstances, the enactment can be the Health Protection Regulations 2020 or the Coronavirus Act 2020. However, this regulation only applies if the reason for the restriction is that it is known or reasonably suspected that the employee has been infected or been in contact with an individual who has the relevant infection. It will be difficult for an employee to argue that by simply travelling abroad, it would amount to a reasonable suspicion that they have come into contact with someone who had coronavirus.  
  2. Amendment to the SSP Regulations:As of writing this article, the UK Government has not amended the SSP Regulations to enable employees returning from countries not included in the travel corridor list to claim for SSP. If it is amended, then employers should pay their returning employees SSP. However, it can be argued that those who have travelled abroad for a holiday have voluntarily accepted the risk and requirement to self-isolate for 14 days. As such, the UK Government may be less inclined to amend the SSP Regulations to enable a returning employee, required to self-isolate for 14 days, to claim for SSP.

What are the employers’ options?

In the above circumstances, employers have the following options:

  1. Pay the employee full pay. Employers may exercise their discretion and agree to pay their employee full pay for the duration of the self-isolation period. However, an employer may not be obliged to do so if the employee is unable to work from home.  
  2. Agree for the employee to take an extended period of annual leave for the duration of the self-isolation period. If the employee does not have a sufficient amount of annual leave to cover the self-isolation period, the employer can agree for the employee to take a proportion of their annual leave and then take unpaid leave to cover the remainder of the self-isolation period.  
  3. Agree for the employee to be placed on a further period of furlough for the duration of the self-isolation period. This option will only apply if the employer has already claimed under the Coronavirus Job Retention Scheme and the employee was put on furlough before 10 June 2020 for a minimum of 3 weeks ending on or before 30 June 2020.

For further information, please see ACAS guidance, the Government’s guidance on international travel and self-isolation and the Government’s guidance on self-isolating after returning to the UK.

New Developments in respect of employees who are required to self-isolate after testing positive with coronavirus  or having  been  identified through NHS Test and Trace

On 27 August 2020, the Government announced that they are implementing a new payment scheme. The scheme will benefit individuals who are self-isolating, live in an area where there are high rates of coronavirus, currently receiving Universal Credit or Working Tax Credit, and who cannot work from home.

The Government advised that eligible individuals who have tested positive with coronavirus will receive £130.00 for their 10-day period of isolation, and members of their household who will be required to self-isolate for 14 days will receive a payment of £182.00. Further, if an individual has been identified through the NHS Test and Trace system, they can receive a payment of £13.00 per day up to a maximum of £182.00 depending on the length of their isolation period

The Government advised that the scheme will first commence on 1 September 2020 in Blackburn with Darwen, Pendle and Oldham and if the scheme is successful, it will be applied to other areas with significantly high cases of coronavirus. As of writing this article, the Government has not advised that they will extend the scheme to employees returning from abroad who are required to self-isolate for 14 days, but cannot work from home. As such, the position of what pay a returning employee is entitled to, is still unclear.

For further details on the scheme, please see the Government’s announcement.

Next Steps

To discuss this article or any matters raised in it, contact Carol Shaw, Head of Spratt Endicott’s Employment Law practice at cshaw@se-law.co.uk. Read Spratt Endicott’s statement on employment law and coronavirus here.

*Disclaimer: While everything has been done to ensure the accuracy of the contents of this article, it is a general guide only. It is not comprehensive and does not constitute legal advice. Specific legal advice should be sought in relation to the particular facts of a given situation. The information is accurate at date of publication, 18th of August 2020 .

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