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Test, trace and travel: new self-isolation rules and employment in the UK

United Kingdom
Written by
Lewis Silkin, widely recognised as the UK’s leading specialist employment law practice.
The requirement to self-isolate for 14 days in order to limit the spread of Covid-19 is being extended to two new situations: where a person arrives in the UK from overseas, and where someone is notified that they need to self-isolate under the new NHS test and trace service. How does this affect employers?

The government has announced that from 8 June 2020, anyone arriving in the UK will be required to self-isolate for 14 days. A failure to comply in England could result in a significant fine of GBP 1,000. (Scotland, Wales and Northern Ireland will implement their own enforcement measures.)

On 27 May 2020, the government also launched its new NHS test and trace service, under which people who have been in close contact with someone who has tested positive for Covid-19 will be notified that they must self-isolate at home for 14 days. This is currently voluntary rather than enforced by criminal fines but may become mandatory if too many people don’t comply.

Both new forms of self-isolation have significant implications for employers. These include: the prospect of further absences from the workplace; the issue of what employees are entitled to be paid during self-isolation; and whether you can encourage or require employees not to travel if this will result in a further 14 days away from work.

Test and trace: employment implications

The NHS test and trace service asks people who are experiencing coronavirus symptoms to order a test immediately and then, if the result is positive, share details of their recent contacts with the test and trace service. Those contacts will be alerted by the service and may be asked to self-isolate at home for 14 days, even if they do not have symptoms.

The test and trace system will likely result in many employees being unable to attend work for 14 days despite not showing symptoms or developing any illness during that time. Effectively, this is an extension of the existing advice that anyone living in the same household as someone with symptoms should self-isolate for 14 days.

The government has issued NHS test and trace: workplace guidance. This asks employers to play their part by making their workplaces as safe as possible, encouraging workers to heed any notifications to self-isolate and supporting them while in isolation. Although self-isolation in this situation is currently voluntary, it would be advisable to require all employees to comply in order to limit the risk of infection in the workplace.

If an employee is able to work from home, they can do so while self-isolating. The workplace guidance suggests that this might include finding alternative work that can be completed at home during the period of self-isolation.

Where employees can’t work from home, statutory sick pay (SSP) has been extended to those who are asked to self-isolate under the trace and test system. As these employees are not actually ill, the wording of an employer’s enhanced sick pay policy may not apply in this situation. They may, however, decide to pay enhanced or even full pay in any event in order to ensure everyone complies with the advice and does not risk infecting others in the workplace.

An alternative is to allow the employee to take some paid holiday. The workplace guidance says that employers “must” give employees the option to use their paid leave days if they prefer (although it is not clear this is actually a legal requirement). For further information, see our FAQs on sickness and sick pay.

Returning travellers

While getting on an aeroplane won’t feature on everyone’s To Do list during the next few months, some employees will certainly want to take their annual leave abroad. Currently, the Foreign & Commonwealth Office is advising against all but essential travel across the world and has issued a Covid-19 exceptional travel advisory notice which advises anyone travelling abroad to return home now.

No dates have yet been confirmed for when non-essential international travel will resume but airlines have said they expect to resume their normal flights to accommodate the peak July and August holiday season. Employers can of course instruct employees not to undertake any work-related travel and encourage compliance with government guidance, but there is no right for you to insist on employees not travelling for personal reasons.

For employees who do choose to holiday abroad, you need to take a consistent and fair approach in ensuring they deal with the mandatory self-isolation period. Many employees will already have booked their summer holiday well before lockdown and government advice changed.

Pay during mandatory self-isolation

There is no legal requirement to pay an employee during the 14-day self-isolation period upon re-entry to the UK. The employee may be able to work from home and be paid as usual. If not, this situation is unlikely to be covered by an employer’s enhanced sick pay policy or any other provisions on pay. The employee is not able to attend work, as it is a criminal offence to fail to self-isolate in this situation, so is not entitled to be paid.

At the present time, there is also no entitlement to SSP. It is possible that complying with self-isolation on entry to the UK will be added to the list of circumstances eligible for SSP when the new rules come into force.

If employees are obliged to self-isolate after a period of work travel, it would be reasonable to pay for this period as the employee’s situation results from the requirements of their job.

Managing annual leave

Employers will also need to consider how to manage annual leave requests and bookings in order to accommodate the additional 14 days away from the workplace.

Employers can revoke pre-authorised leave by providing notice of the same number of days as the holiday the employee wanted to take (e.g. five days’ notice to cancel five days of leave). You should, however, proceed with caution before cancelling pre-booked annual leave to prevent overseas travel. Doing so without a proper business reason and appropriate compensation could be a breach of the implied duty of trust and confidence.

A clear policy should be adopted surrounding the use of annual leave where the compulsory self-isolation period applies. If you require the length of annual leave to include the additional 14 days, you may want to consider removing any limit on how much annual leave can be taken in any one period. It may also be sensible to consider distinguishing between:

  • holiday requests booked prior to lockdown, perhaps offering a period of unpaid leave as a gesture of fairness rather than requiring additional annual leave to be used; and
  • requests booked since lockdown was implemented.

Employers who are unable to manage workflow without a specific employee for the length of their proposed holiday plus the 14-day isolation period might also be able to refuse (or revoke) holiday approval on those grounds: it provides a clear business reason. A recent amendment to the Working Time Regulations allows employees to carry over holiday for the next two years if it has not been reasonably practicable to take it in the current holiday year due to the effects of coronavirus. While it is not clear that the 14-day self-isolation period would in itself make it not reasonably practicable to take holiday, the need for workforce cover is listed as a relevant factor in the government’s guidance on holiday entitlement and pay during coronavirus.

When deciding on your policy, it is important to appreciate that not everyone who plans to travel abroad will be doing so to enjoy a holiday. There may be specific circumstances where an employee is required to travel, for example to visit a sick relative or attend a funeral, which could be treated as exceptions. It is also important to be clear and consistent in order to avoid grievances or complaints about discrimination.

James Davies
Partner - United Kingdom
Lewis Silkin