What employers can dictate over Christmas
Richard Fox, December 01, 2020
The public mood is now very much focused on Christmas. The government has liberalised lockdown to allow for more social mixing over the festive period and quarantine requirements have been relaxed for the period post 15 December.
If you can provide a negative test for COVID-19, government guidance now says you need to isolate for five days rather than 15 after travelling abroad.
This may be good news for individual employees, but how does this leave employers, particularly those that require the physical presence of their employees, in order to carry on their business?
Employers may want to impose restrictions on their employees travelling abroad. They may be able to require employees not to travel to the extent that this is a lawful and reasonable instruction, but to do so can import risk.
Employees may claim such a requirement is potentially discriminatory if, for example, their nationality is not British and their families live abroad.
Alternatively they may argue the instruction is unreasonable given their compliance with the government’s requirements and in breach of the terms of mutual trust and confidence implied into all contracts of employment. If they have more than two years’ continuous employment this may entitle them to claim unfair dismissal.
Employers are therefore going to have to exercise careful judgment in each case. They should begin by considering if they are genuinely at risk if an employee needs to self-isolate on their return to the UK. Can they work remotely, even if they do not customarily do so, or can tasks be reallocated so this can be accommodated?
An employee will have the right to a private life so questions about leave will have to be handled sensitively, but an employee who for example, wants to go abroad for a skiing holiday may be considered to be in a very different category to an employee who wants to visit a terminally ill relative for the last time.
One option is to introduce a judiciously constructed company-wide memo in relation to requests for a trip abroad at the current time. That policy need not involve an “instruction” to stay in the UK, more a recommendation, leaving room to allow for the exercise of individual discretion where appropriate.
Another option is to make clear the financial consequences if the employee needs to quarantine on return to the UK, but cannot do so while working from home. It is currently unclear whether statutory sick pay is available in those circumstances as government guidance does not specifically address the issue.
It is unlikely there is specific provision in the contract for such an eventuality either (although this should be checked). So it may mean the employee has to take the period of self-isolation as holiday (if they have holiday left this year) or unpaid leave, and this may serve to dissuade the employee from going away.
As for travel within the UK, this is even harder for an employer to restrict. The introduction of a company policy emphasising the importance of following government guidance could be helpful, if upon return it would appear a breach of the guidelines has led to the need to self-isolate, an employer would be on safer ground if seeking to impose financial ramifications in terms of pay.
The bottom line is that the atmosphere around people’s ability to celebrate Christmas has become almost febrile this year – just look at the political pressure on the government in the last few days of the second lockdown. To relax the regime despite medical advice would involve significant risk.
Employers should not shy away from protecting the interests of their business. They are entitled to try and restrict the numbers of employees going abroad, and putting themselves at risk with trips to see family and friends in the UK over Christmas.
However, when they do, they will have to tread carefully, not just because they do not want to appear like Ebenezer Scrooge, but because there are so many legal pitfalls for the unwary.
Richard Fox is employment partner at Kingsley Napley LLP.