Cuarentena = Quarantine, Employment Rights and Consequences

The Government announced this weekend that travellers come back from Spain, Canary Islands and Balearic Islands will now be required to quarantine for 14 days on their return. Whilst those yet to travel have limited choices about their planned travel, those already abroad have been faced with the reality that they now have no choice, but to face a further two weeks of potentially unpaid leave. The new travel rules were implemented on Saturday following concerns of a potential second spike in Mainland Spain. 

So, where does that leave employers and employees in terms of employment? Here we discuss the implications and the rights of those affected employees.

Labour has called for support for those having to quarantine. The party says there is “no guarantee employers will allow people to work from home for two weeks”, and there is also no legal obligation to do so. 

However, employers need to be able to empathise with the situation some holidaymakers have found themselves, and also discourage people attending work in line with their obligations under the health and safety provisions and force used to require a returnee maybe in breach of Health and Safety and may have financial consequences as a result in a number of ways:

·      A breach of health and safety provision can also be a criminal offence;

·      Forcing an employee to return to work could be merits for a successful constructive dismissal claim; 

·      Dismissing an employee could result in an automatic unfair dismissal claim; and

·      Any outbreak of COVID-19 following the same could result in personal injuries claims and litigation for negligence.

So, what should employers be doing moving forward to protect themselves:

Where employers have staff returning from Spain they should be looking at whether or not the employee can work from upon their return, or whether they could for the short two week period carry out alternative duties that may assist them in taking time off unpaid whether that be full or part time (part time may need agreement with the employee but it is feasible that they will agree rather than not being paid). If employees cannot do any part of their role from home, and there is no other role they could fulfil at home then employers need to come to an agreement with the employee about the consequences of the 2 weeks in particular whether this will be paid, unpaid or used as a holiday.

Situations such as these can easily damage the working relationship which quite possibly may see crucial workers leaving where they don’t feel supported by their employers in times of need. That being said employers should not seek to apply favouritism to employees by paying some and not others as this may open claims for breach of mutual trust and confidence. 

However, in terms of legal obligations, there is no obligation on an employer to pay an employee if they have to isolate for two weeks. Further, those employees who are self-isolating following the return from Spain are not entitled to Statutory Sick Pay. This has the very possible effect of those travellers ignoring Government Guidance and returning to work for fear of losing much needed income. 

In that regard, we suggest that employers have very strict policies in place to ensure this does not happen. This may be asking employees to provide booking information when they are returning from abroad to ensure those travelling from Spain do not slip through the nets. 

It is difficult period especially with businesses just attempting to get back on their feet, any two-week period of isolation can be disruptive to the business and some employers will be quick to dismiss to try and avoid this. 

Some employees will be concerned of the possibility of dismissal for not turning in for work, which again encourages breaching the Guidance, which is what we as a country need to deject. 

That being said, we are of the view that if an employer dismissed an employee who was genuinely following Government Guidance, they could find themselves liable for unfair dismissal (subject to the employee having the qualifying two year period). 

Moreover, if this has been discussed with the employee beforehand, it is also possible that any later dismissal maybe automatically unfair, which does not require a qualifying period of two years. 

Automatic unfair dismissal can happen in a number of different scenarios but the one applicable to this situation would be the provisions pertaining to Health and Safety. The dismissal may be found to be automatically unfair in any of the following circumstances:

1.     the employee, having been designated by the employer to carry out health and safety duties, carried out those duties. Note that for an employee to have been so ‘designated’ they must have been selected by the employer to carry out specific activities in connection with preventing or reducing risks to health and safety at work, over and above their ordinary job duties (essentially, a health and safety officer’s function). Simply appointing an employee to do a job in which they must exercise some responsibility to take care of their own health and safety (and that of others) is not the same thing.

2.     a health and safety representative or member of a safety committee carried out the functions of that role

3.     the employee took part in relevant health and safety consultation or in the election of health and safety representatives

4.     the employee, in circumstances where there were no health and safety representatives or safety committee or, if there were, it was not reasonably practicable to bring the matter to their attention, brought certain health and safety issues to their employer's attention by reasonable means

5.     the employee left work or refused to return to work in circumstances of imminent danger

6.     the employee took appropriate steps to protect himself or others in circumstances of imminent danger. 

In deciding whether the dismissal was unfair, a tribunal must concentrate on the employee's actions and state of mind, and the fact that the employer disagreed with (i) the employee's assessment of the existence or extent of the danger, and/or (ii) the appropriateness of the steps the employee took or proposed, is wholly irrelevant.

We acknowledged that this is an extremely worrying and stressful time for all our readers, and we hope the above assists you. However, If you require any specific or additional legal advice which has not covered in this article above, please get in touch using the contact us form.