The government announced on 25 July 2020 that if you are returning from Spain to England, Wales, Scotland or Northern Ireland on or after 26 July 2020 you will need to self-isolate for two weeks.

The rules apply to travellers arriving from anywhere in Spain – including the Canary and Balearic Islands and will apply to employees returning from holiday, personal travel and business travel.
This will mean employees returning from Spain will not be able to go to work, school, public areas or use public transport.

Employees’ rights when returning from Spain

Employees faced with the 14-day quarantine will be keen to understand their employment rights, especially with regards to pay.

What pay is an employee entitled to upon returning from Spain (or any other country included in the travel corridors list?

An employee will be entitled to full pay if they are able to work from home. Under the new rules, they will not be able to attend the workplace (and it would be a criminal offence to do so). For many, working from home has been the norm over recent months and so if working from home is an option, the new rules should not obstruct the employee’s ability to work from home and receive full pay.

However, if an employee cannot work from home in this situation, there is no legal entitlement for the employee to receive full pay.

The government have confirmed there is also no entitlement to Statutory Sick Pay “SSP”. Therefore, unfortunately there is no right to SSP if an employee is isolating at home because of travelling back from a foreign country and this is the sole reason for self-isolating. For details on when SSP is payable, please see our blog.

When the announcement was made, the Foreign Secretary Dominic Raab said “you cannot be penalised in this country lawfully for following the rules and the law that’s in place” and self-isolating employees “ought to be treated sympathetically” by employers.

The government therefore appears hopeful that employers will decide to pay full pay, or the equivalent of SSP, for the duration of the quarantine period as a matter of discretion. Furthermore, if an employee has travelled to Spain for work related business, then it would seem reasonable for the employer to pay full pay for the 14-day quarantine period as the period of isolation flows from their work-related duties.

Alternatives for employees

Where an employee is required to self-isolate for 14 days after returning from Spain (or another country where isolation is required), and they are not able to work from home, employers may wish to explore the following alternatives with these affected employees:

• Agreeing that the employee takes an extended period of annual leave – if the employee would prefer to take the full 14 days, or a proportion of it, as annual leave, this could be agreed with the employer and the employee would be entitled to full pay for that period of extended annual leave. This may be the most practical solution for both employer and employee;
• Paying full pay – as noted above, the employer may apply its discretion and agree to pay a returning employee who is unable to work from home full pay for the duration of the isolation period. The employer would not be obligated to do so, however.
• Paying contractual sick pay – however, returning from a country and being required to self-isolate is unlikely to be covered by an employer’s company sick pay policy.
• Furlough leave may be an option if the employee has already been on furlough leave for a period of 3 consecutive weeks at some point before 30 June 2020. Arguably, being forced to self-isolate after returning from Spain would arise from a social emergency resulting from the Coronavirus, and so placing an employee on furlough who is having to quarantine would appear to be permissible under the scheme.

The above options are confirmed by ACAS, which has published the following guidance:

“If an employee cannot do their job from home, they may need to take extra annual leave to cover the 14 days of self-isolation. In some cases, this might mean their annual leave request is refused.

The employer can consider other options. For example, if the employer and employee agree, the person could be put on furlough (‘temporary leave’) for the time they’re self-isolating.

Employees and workers are not entitled to Statutory Sick Pay (SSP) if they’re self-isolating after returning to the UK and cannot work from home. But an employer can choose to pay them SSP – or a higher rate of sick pay – if they want to.”

In summary, it is likely that many employees returning from Spain (or another affected country) to isolate for 14 days and who cannot work from home will be faced with the unfortunate prospect of no pay for that period. This is unless the employer applies its discretion to make payments to the employee or the employee continues on an extended period of annual leave.

We are advising both employers and employees with regards to their obligations and rights throughout the COVID-19 pandemic. If you have any questions about this blog, or any other employment matter, please contact myself or one of the Employment team.

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