Response to government consultation on holiday pay following the Supreme Court judgement
This article outlines key information relating to amendments to the law on holiday pay, TUPE and working time.Read more
Although the requirement to self-isolate for 14 days when returning from overseas was relaxed on 10 July 2020, it still applies to travel from countries not listed as exempt in the travel corridor.
If an employee must quarantine upon returning to England from a high-risk country, the position in respect of pay has presented a thorny issue for employers and the legal position is unclear. If a quarantined employee 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 unclear. The case of North West Anglia NHS Foundation Trust -v- Gregg 2019, determined that if an employee is ready and willing to work, and the inability to work is the result of a third-party decision or external constraint (such as a requirement to quarantine) they ought to be entitled to their normal pay unless their contract states otherwise.
If an employee was aware in advance of the requirement to quarantine but decided to book a holiday anyway, it seems unlikely that this would be deemed to be a factor that they had no control over. Therefore, if an individual goes against their employer’s and the Government’s advice not to go on holiday to a specified country, this would be contrary to the parameters set within the Statutory Sick Pay (SSP) guidelines and they will be unlikely to be eligible to receive SSP.
However, it is unclear whether an employee is entitled to Statutory Sick Pay (SSP) in this situation and the updated guidance is silent on this issue.
It is possible that SSP entitlement is due under the incapacity provisions of regulation 2(1)(b) of the Statutory Sick Pay (SSP) Regulations. However, these provisions require that it is known or reasonably suspected that a person may have come into contact with a case of COVID-19, for the entitlement to SSP to arise. It is unlikely that merely travelling to a country, not on the exempt list would fall within this definition. As such, an employee is unlikely to be entitled to SSP, unless they or a member of their household are exhibiting symptoms of coronavirus. In those circumstances, the employee will be required to self-isolate under the Government’s ‘ordinary’ infection control provisions and will be entitled to SSP.
Where an employee has been on holiday, rather than being required to travel, they have arguably voluntarily accepted the risk and the requirement to self-isolate, and the Government has not committed to pay SSP in these circumstances yet.
The Government has stated in its guidance that employers should think carefully before dismissing an employee because they cannot work due to self-imposed isolation. Dismissal should be treated as a last resort and employers should consider alternative arrangements first, such as agreeing with employees to take annual leave or unpaid leave.
With this in mind, it is important for all employers to communicate in advance with their staff about travel abroad and the expectations of staff during this unprecedented situation. This should include outlining circumstances that could give rise to disciplinary action, such as a failure to notify an employer of travel abroad which will require a period of quarantine and guidance on any contractual sick pay. For staff in critical roles, employers may wish to state that this would be deemed to be gross misconduct if their absence has a significant impact on the running of the organisation.
It remains to be seen whether the Government will provide further clarity in relation to SSP in these circumstances.
Please note, the information included in this update is correct at the date of publishing.
For more information regarding the issues that employers need to consider when employees are required to isolate for 14 days after returning from abroad, contact us on 01332 226 149 or complete the form below.
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