Guidance on shielding and travel-related quarantine has changed numerous times in the UK over the past few months, and employers need to remain up to date. At the peak of the pandemic, those who were considered most at risk from COVID-19 were initially asked to ‘shield’ themselves in their homes for 12 weeks, to both protect themselves and relieve pressure on the NHS.
We have seen several localised lockdowns so far, with minimal notice, so it is important for employers to be ready for this potentially happening in their area of business and for shielding rules to be reinstated. If shielding staff cannot work from home, they will be entitled to Statutory Sick Pay (SSP) for the shielding period or receive pay in line with any contractual provision covering the time off. Employees who are not themselves shielding, but live with someone who is, are not entitled to any pay protection if they choose not to attend work. This is a case of an employee who is temporarily unable to fulfil their contractual duties and should be dealt with as such.
Those who were previously asked to shield may now have to self-isolate for 14 days because they have travelled to a non-exempt country for a holiday. In this case, they will not be entitled to SSP. 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 COVID-19 symptoms, this does attract SSP. Regardless, employers may wish to pay SSP to employees who must self-isolate upon their return to the UK and in any case, always check the contract of employment or any collective agreement for other payment provisions in place.
This rule on SSP and travel-related quarantine applies to all staff members, not just those who were asked to shield. The Government has previously outlined how employers should approach the situation where an employee must self-isolate upon their 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, or considering telling employees to take the isolation period as annual leave, giving enough notice; 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, employers should expect their employees to get in touch as soon as possible to discuss viable options, especially as SSP is not payable in cases like this. Employers should be careful how they approach this issue as the guidance also warns that employers may be liable for unfair dismissal claims if they dismiss employees who have had to self-isolate (unexpectedly or otherwise). Although tribunals will consider all the relevant facts around the dismissal before reaching a decision, including public health guidance on the coronavirus, the individual’s behaviour, circumstances of the employer, and history between the employer and employee.
Previously, the Government had allowed health or care professionals such as NHS employees to be exempt from having to self-isolate upon their return to the UK after travelling abroad, but this has been scrapped. The unpredictability of COVID-19 means employers need to keep up to date with the changing government advice as best as they can.