Employment rights when self-isolating on return to the UK

The Government has published guidance for employees and employers on employment rights when self-isolating on arrival to the UK from countries not on the travel corridor list, emphasising that an individual’s employment right is dependant on their employment status.

The term 'employment status' is the arrangement under which an individual is engaged to work for an employer. There are three main categories of employment status which carry different employment rights – these are employees (hired directly by the organisation); workers (casual, agency or freelance workers); and self-employed people (for example, contractors).

The guidance below relates mostly to employees and workers. Self-employed people only have certain rights in respect of trade unions, discrimination, and rights under the Human Rights Act.

The guidance

Individuals coming into the UK, bar a short list of exemptions, have been required to self-isolate for 14 days since 8 June 2020 due to the high cases of coronavirus reported globally. The list of exempt countries was published on 3 July 2020 with some countries having been added or removed since, including Spain and France which were both recently removed from the exemption list.

On 14 August 2020, the Government outlined how employers should approach the situation where an employee has to self-isolate upon return to the UK from countries not on the up-to-date exemption list. This includes working from home during isolation periods where possible, which should ideally be discussed prior to travel. Employers should also consider telling employees to take the isolation period as annual leave, giving enough notice – notice should be twice as long as the leave they want the employee to take – or unpaid leave for family emergencies requiring travel.

Where employees are already abroad when the country they are visiting is removed from the exemption list, employees should be getting in touch with employers as soon as possible to discuss any viable options available to them. Employers should be aware that, where employees cannot work from home their employees have no recourse to Statutory Sick Pay (SSP) in this situation. It is therefore important that employers familiarise themselves with the difference in SSP treatment for this type of self-isolation when compared with others. For example, when an employee lives with someone who develops symptoms, this does attract SSP.

Regardless, employers may wish to pay SSP to any employee travelling abroad and who must self-isolate upon their return to the UK, however, this will not be recoverable from the SSP Rebate Scheme.

The guidance also warns that employers may be liable to unfair dismissal claims, from employees who have worked for them for two years, if they dismiss employees who have had to self-isolate. However, a tribunal will consider all the relevant facts around the dismissal including public health guidance on the virus, the individual’s behaviour, circumstances of the employer, history between the employer and employee. This is not to say that employers cannot dismiss staff, but the Government advice that the reasons and procedure must be fair and should be a last resort.

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