Our specialist employment lawyers assess the impact of the self-isolation guidelines on employment.

Formalities before you travel


The requirement to self-isolate for 14 days on arrival applies to all those arriving in the UK unless they are arriving from an ‘exempt’ country/territory. The list of ‘exempt’ countries/territories, covered by so-called ‘travel corridors’ is constantly changing as coronavirus (COVID-19) infection rates in other countries are updated.

You don’t need to self-isolate on arrival in the UK if you are travelling from an exempt country/territory and have been in an exempt country/territory for the last 14 days. Exempt countries/territories include all parts of the UK, the Republic of Ireland, the Channel Islands and the Isle of Man.

If you travel from an exempt country/territory, but have been in a non-exempt country/territory during the last 14 days, you will need to self-isolate for the remainder of the 14 day period since you were in a non-exempt country/territory. For example, if you arrive in the UK from an exempt country/territory, but you travelled to the exempt country/territory 4 days ago from a country/territory that is not exempt, you will need to self-isolate for 10 days on arrival in the UK.

Forty-eight hours before you travel to the UK from anywhere outside the UK, the Channel Islands, the Isle of Man or the Republic of Ireland, you will need to complete the public health passenger locator form.

Separate advice applies for Scotland, Wales and Northern Ireland. The rules apply to all UK residents and all visitors coming to the UK, except for those on the exempt list. ACAS has also published guidance.

Self-isolation on arrival


The government guidance says that you should self-isolate in one place for the full 14 days at the address provided on the public health passenger locator form submitted before arrival. This can include ‘your own home, staying with friends or family or a hotel or other temporary accommodation’.

There are limited circumstances in which, according to the guidance, you can leave your accommodation. These include:

  • obtaining medical assistance;
  • accessing basic necessities such as food and medicine (where arrangements cannot be made for these to be delivered);
  • accessing critical public services;
  • attending a funeral of a family member of someone you live with;
  • visiting a dying or critically ill family member or someone you live with;
  • fulfilling a legal obligation such as participating in legal proceedings; or
  • if there’s an emergency.

Importantly, the guidance expressly provides that ‘you cannot go out to work or school or visit public areas’.

Note that these requirements for self-isolation on arrival to the UK from a non-exempt country/territory are different to the requirements for self-isolation arising in other circumstances. Those who receive a positive test result, or have coronavirus (COVID-19) symptoms, or live in the same household as others in either category must self-isolate at home, for 10 days in the first instance. The situations in which someone is permitted to leave the home in those circumstances are much narrower. Those notified of a requirement to self-isolate because of a contact with a person who has tested positive must self-isolate for 14 days from their last contact with the person who has tested positive. 

Self-isolation on arrival in the UK and employment rights

 

On 27 July, speaking about the impact on employees being required to self-isolate on travel to the UK, the Foreign Secretary, Dominic Raab, said: ‘If someone is following the law in relation to quarantine and self-isolating the way they should, they can’t have penalties taken against them.’ That’s wishful thinking, and the reason why is the attitude to protections in the workplace demonstrated by Conservative governments of which he has been a part.   

There is no guaranteed protection against dismissal for an employee unable to work because they followed the government’s quarantine guidance and didn’t go to work. However, for employees with two years’ qualifying service, we expect that it would be very likely that an Employment Tribunal would find a dismissal in such circumstances unfair. A dismissal in such circumstances may also be unfair on health and safety grounds (as to which see further below).

Provided that the employee had already been on furlough for three weeks by 30 June, it would still be possible for the employer to arrange for the employee to be placed on furlough under the Coronavirus Job Retention Scheme.

Employers should still be ‘taking all reasonable steps to help people work from home’. Those steps include discussing home working arrangements, ensuring employees have access to the right equipment for home working, including them in all necessary communications and looking after their physical and mental wellbeing. However, home working will not be possible for all workers.

Entitlement to statutory sick pay has been extended to those self-isolating because of a positive result, those with positive symptoms and those living in the same household as individuals in either category. It has also been extended to those required to self-isolate because of contact with a person who has tested positive under the Track and Trace system. However, at the time of writing, it has not been extended to those required to self-isolate on arrival in the UK under the government’s quarantine rules.

Many employees will have additional contractual sick pay arrangements. These may provide entitlements to contractual sick pay in the circumstances of self-isolation on arrival in the UK. 

It may be possible for employers to require workers to take the period of self-isolation on their return to the UK as part of their annual leave. However, we certainly would not advocate this as the norm in circumstances where a worker is likely to be returning from the very annual leave which was supposed to have given them the rest and recreation intended by The Working Time Regulations 1998. Note also that an employer would have to give notice of twice the period of annual leave required to be taken.

The employer’s response to a worker’s need to self-isolate on arrival in the UK will also need to comply with applicable equalities duties.

There is also some protection where an employee takes evasive action to avoid a health and safety risk. ‘In circumstances of danger which the employee reasonably believed to be serious and imminent’, the employee has a right not to be subjected to a detriment if they take ‘appropriate steps to protect herself or other persons from the danger’. A dismissal in such circumstances will be automatically unfair.

Importantly, the danger may be to the worker themselves, or to others, including other workers and members of the public. For example, a chef who was dismissed because they refused to cook food which they considered to be a danger to the public was, in principle, entitled to argue that their dismissal was automatically unfair on health and safety grounds (see Masiak v City Restaurants (UK) Ltd).

Even if the return to work was permitted by health and safety laws, that should not prevent an employee having a reasonable belief of imminent danger (see Joao Jurys Hotel Management UK Ltd). And the employer disagreeing with a worker’s assessment of the circumstances does not prevent the worker being protected if they have a reasonable belief (see Oudahar v Esporta Group Ltd).

The appropriateness of the steps the worker takes, or proposes to take, are to be judged ‘by reference to all the circumstances including in particular, their knowledge and the facilities and advice available to them at the time’. That would include the government’s guidance to self-isolate on return to the UK.

What you should do

 

If you are about to travel abroad (or are already abroad), whether for holiday or for some other reason, the first thing to do is to monitor whether the destination from which you will be returning (including any transit stops) is on the list of exemptions from the self-isolation requirements on arrival in the UK. Remember that the list of exempted countries/territories changes regularly.

In workplaces with a recognised trade union, solutions can be negotiated through collective agreements between the union and the employer.

In workplaces with no recognised trade union, it is likely to be sensible for workers to inform their employer of their travel arrangements before departure, and try to agree a solution in advance in the event that their destination country/territory (or any transit country/territory) remains not on the exempt list, and they are required to self-isolate on their return to the UK.

If possible, the best solution is likely to be to arrange to work from home during the period of self-isolation. The worker should in any event make it clear that they are willing to do this.

Where working from home is not an option, the employer’s sick leave scheme should be checked to see whether it would cover a period of self-isolation and whether contractual sick pay would be paid. A worker who had already been furloughed for three weeks by 30 June may also want to see whether their employer would agree to furlough them for the self-isolation period. Consideration may also have to be given to taking annual leave (subject to notice requirements).

As we have described above, there is also some protection against dismissal, and potentially also for suffering a detriment (or dismissal) on health and safety grounds.

Travellers will also need to keep in mind the prevailing Foreign and Commonwealth Office advice. At the time of writing, this advice was against ‘all but essential’ travel to countries other than those appearing on its exempt list (which is slightly different to the exempt list issued by the Department for Transport for the purpose of self-isolation on arrival in the UK). Travellers should also check their travel insurance arrangements.