While employers try to grapple with how to make their workspaces safe for staff to return to work, another potential risk and complication looms ahead.
As other countries are removing their restrictions and allowing tourism to resume, some employees may want to take the opportunity to travel back home to visit family or take a holiday break in Europe or further afield. However, the UK government announced that, from 8 June 2020, new rules will be implemented for entering or returning to the UK, which will require returning travellers to self-isolate for 14 days afterwards and provide journey and contact details. This will mean a two-week break takes on a new complexity, especially if the employee cannot work from home.
At the moment, the government has confirmed that this will not apply if you employees are returning from Ireland, the Channel Islands and the Isle of Man. There are also various exemptions for workers such as Eurotunnel travellers and healthcare workers travelling to the UK to provide essential healthcare. However, where does that leave employers whose employees decide they want to head off to other destinations?
Many employers are already restricting business travel, but should they also now be considering the implications of personal travel and attempting to restrict that too? It’s something employers will need to consider further and develop a consistent approach and policy they can apply to ensure fair treatment. However, it will need to be carefully thought out given the various potential permutations. It’s also most likely to impact staff who cannot work from home as the 14-day self-isolation post-holiday will constitute unpaid leave.
Taking a pre-emptive approach before the issue of an employee returning from abroad arises could be the best way to head off the issues. This can be done by an all-staff communication being sent before they start planning and booking their holidays to make staff aware of the impact of travelling, the reasons why they will need to notify you as their employer if they intend to travel abroad and what will happen on their return.
If you are made aware that an employee is intending to travel abroad and will need to self-isolate for 14 days on their return, then a conversation with them about how the current guidance would prevent the worker from returning to the workplace and how this will impact their pay if they are unable to work from home, could lead to a change of heart and holiday destination.
Alternatively, as part of your return to work action plan, you may take the view that if employees cannot work at home and would need to self-isolate for 14 days on their return to the UK, there is a good business reason to decline the request for leave and place restrictions on personal travel. This would rely on an employee notifying you of their intention to travel abroad. Will employees object on the basis it is their holiday and private time? Would an employee be able to resist disclosing the information and/or successfully claim they were forced to resign and therefore constructively unfairly dismissed due to their employer’s treatment by banning them from taking holidays in certain locations?
Whether or not an employer will be regarded as behaving fairly and reasonably in the current circumstances, by placing restrictions on personal travel, is untested. An Employment Tribunal may determine that it is an unreasonable restriction and prevents an employee from resting, relaxing and enjoying their own leisure time, which is the purpose of annual leave under the Working Time Regulations. Employers are likely to argue though that they have a duty to ensure that, so far as reasonably possible, the health and safety of their staff is protected and by enforcing these restrictions they are also looking after the health and safety of other employees and operating in line with current government guidance. However, is an employer entitled to insist on knowing where an employee is taking their leave in the first place, given employees have certain privacy rights under the Human Rights Act, including the right to respect in their private and family life? If this information is requested by an employer, it would need to be justified based on the current workplace risk assessment requirements. Reassurance would also need to be given to employees that the information about their annual leave would be processed in compliance with the company’s data protection policy and any information on this would not be stored for any longer than necessary.
If you decide not to try to prevent the travel in the first instance, what happens if you have staff returning from annual leave and you suspect they have been abroad – possibly from social media postings or word of mouth? Again, a consistent approach needs to be taken but it would be legitimate to ask employees where they have been if there are genuine health and safety concerns. However, it’s important to avoid only asking employees of a particular nationality the questions. A clear and consistent approach will also reassure employees in the workplace that these measures will be taken for anyone returning from abroad to keep the workplace as safe as possible.
To limit the impact of employees and workers having surplus annual leave or feeling they need to go abroad to use their holiday at the moment, the government has passed emergency legislation to allow workers to carry up to four weeks’ of annual leave to the next two leave years, if it has not been reasonably possible to take it this year. This should not be used in every circumstance and the guidance reminds employers that they should do everything reasonably practicable to ensure employees take annual leave. Employers need to be mindful that their staff continue to have statutory and contractual rights to take leave. Working with staff constructively to take their leave this year – while considering the risks associated with overseas travel – is the best way forward.
Pam Loch is a Solicitor and Managing Director at Loch Employment Law.