Understand how to support your business and workforce through this global health emergency
Q: What does the delay in the roadmap out of lockdown mean for employers?
On 14 June the Prime Minister announced that the final stage of England's roadmap of lockdown easing would be postponed. Instead of further easing of measures on 21 June, this step has been postponed to 19 July. This was because of increasing evidence of the rapid spread of the Delta variant and its potential impact on the NHS. The previous Step 3 restrictions therefore remain in place. The data will be reviewed and any further easing will be confirmed on around the 12 July.
The delay in the roadmap out of lockdown means that employers should continue home working for staff where possible until at least 19 July. Those employees who cannot work from home can continue to travel to the workplace.
Employers should continue to facilitate remote working. Where staff cannot work from home, employers should take steps to make workplaces COVID-19 secure, including social distancing. At work the official advice is to remain two metres from anyone you do not live with, or at least one metre with additional mitigations. Until 19 July guidance about wearing face masks also remains in place.
Generally, the size of groups attending locations remains at six inside and 30 outside. However, the government guidance says that people can gather in a group larger than six people or two households indoors or in a group larger than thirty people outdoors if it is necessary for work. The guidance specifically states that work meetings should not take place in a private home or garden unless they have to. (There are some exemptions on numbers for weddings and COVID-secure capacity limits at some individual venues.)
Further guidance continues to apply to specific sectors, for example those working in other’s homes such as cleaners and tradespeople. For further information see Q: What steps should employers take before employees return to the workplace? Empliyers should also refer to the guidance available for different sectors to try and reduce the risk of spreading COVID-19. Employers may need to use more than one of these guides.
Clinically Extremely Vulnerable (CEV) people
Extra consideration should always be given to those people at higher risk, for example because they are clinically extremely vulnerable. Those who live with someone who is clinically extremely vulnerable should also be cautious.
Clinically extremely vulnerable people should continue to work from home where possible and if they cannot, they can go to the workplace. Employers are required to explain the measures in place to keep these employees safe at work which may include regular testing and adjusting working patterns temporarily to avoid using public transport during rush hour.
Q: What are the four steps for easing lockdown between March and July 2021?
The four steps for easing lockdown in England between March and July 2021 as announced by the Prime minister on 22 February are set out below. The government has also published guidance outlining dates for reopening businesses and venues in England. On 14 June 2021 Prime Minister Boris Johnson announced that COVID restrictions in England under step 3 would be extended to 19 July.
Step One: March 2021
The government advice is that staff who can work from at home should continue to do so. No overseas travel is permitted unless there is a legally permitted reason. It is illegal to travel abroad for holidays and other leisure purposes. However, sectors such as education and care homes are affected by some easing of lockdown measures in March.
Other measures are as follows:
- One person can meet one other person from another household outside for recreation, not just exercise. For example, a picnic or sitting on a bench with a coffee but not sports such as tennis or golf.
- All schools and colleges in England will reopen and childcare including breakfast and after-school clubs can resume. All secondary and college pupils will be tested twice a week at school for the first two weeks, then testing will be undertaken at home. Secondary school pupils and staff in all schools will wear masks.
- Care home residents may have one named visitor.
- University students on practical courses can return but others will have to continue with online lessons to be reviewed over Easter.
The government advice continues to advise working remotely from home where possible and no overseas travel is permitted apart from necessary work subject to the quarantine restrictions. However, sectors including sports centres will see some further easing of lockdown measures. The general "Stay at Home" message is replaced with staying local where possible.
- Two households or up to six people from different households can meet outside, including in private gardens.
- Outdoor sports facilities may reopen, organised outdoor sports can take place for both children and adults.
The government advice continues to advise that staff should work from home where possible. No overseas travel for leisure is permitted but necessary business travel is allowed subject to the quarantine restrictions. Non-essential retail, including hairdressers and beauty salons have reopened.
- Indoor mixing of different households is still not allowed.
- Outdoor hospitality can reopen, including pubs and restaurants - with the rule of six or a larger group from two households. People must be seated outside when ordering and eating or drinking.
- Libraries, museums, zoos, theme parks and gyms can also open.
- Self-catering holidays with your own household will be allowed.
- Funerals of up to 30 people and weddings and wakes of up to 15 people.
The government advice remains that staff should remain working from home where possible but that home working and the one-or two metre plus rule, and mandatory facemasks will be reviewed before Step Four.
Other measures are as follows:
- Indoor hospitality including pubs, restaurants, cinemas, theatres, concert halls, children play areas, hotels, B&Bs, indoor exercise classes can reopen.
- Indoor diners and drinkers must remain seated and table service is necessary in all indoor venues.
- Indoors, the rule of six or a larger group of up to two households applies.
- Testing will be used to support these openings of indoor and outdoor performances and sporting events, including theatres, concert halls, conference centres and sports stadia. Indoor venues with a capacity of 1,000 people will be allowed. Outdoor performances and events are limited to maximum capacity of 4,000 people or must only be half full, or those for 10,000 people can only be a quarter full, whichever is lower.
- People can meet outdoors in groups of up to 30.
- Weddings, wedding receptions, christenings, bar mitzvahs and other significant life events will be allowed indoors with 30 people. The cap on funeral and wakes attendees is lifted in line with how many people can safely be accommodated in the venue.
- Up to 30 people are allowed to attend support groups or parent and child groups (the limit does not include children under five).
- Social distancing still applies when out in public but the Government has given the public a choice about whether or not to hug or touch close family and friends.
There will be no tier systems across the UK; the rules set out above apply to the whole of England but different dates and rules will apply in the devolved parts of the UK.
In Scotland the full route out of lockdown is outlined in the strategic framework update. There will be a return to the levels system when measures are eased, meaning different parts of the country could be under different rules.
In Wales there is also a minor easing of restrictions as outlined by the current restrictions section of the Welsh Government website.
In Northern Ireland the lockdown is easing and restrictions are explained on the NI Direct website.
Q: When will working from home end under the 'roadmap' out of lockdown?
Working from home for most sectors is not coming to an end as yet. Employers should note that the timetable and rules set out in the ‘roadmap’ for easing lockdown in England are still subject to review and it is essential to keep up to date with any further changes during the progressive easing of lockdown. The dates outlined in the roadmap are the earliest dates rules could be lifted. Information on the potential dates is also available in the guidance on reopening businesses and venues in England.
It remains difficult for employers in many sectors to plan for the spring to summer period and beyond. In particular the rules about working from home, the one-metre plus rule and mandatory facemasks remain in place and are being monitored and reviewed. Working from home may end in July when social distancing rules may be relaxed, although this is currently speculative.
Employers in some sectors such as education, retail, care, hospitality and hotels do have earlier dates to enable planning to take place, for other sectors remote working continues and the end date for this is as yet unconfirmed.
Step 1: 29 March
People will no longer be legally required to stay at home but many of the lockdown restrictions remain in place. Guidance still states that people should continue to work from home where they can. People should continue to minimise travel wherever possible, and should not be staying away from home overnight. It is not be possible to meet people from other households indoors.
Step 2: 12 April
The Government continue to advise people to work from home where they can. The Global Travel Taskforce issued a report on 9 April with recommendations aimed at facilitating a return to international travel as soon as possible while still managing the risk from imported cases and variants. The Government will determine when international travel should resume, which will be no earlier than 17 May.
Step 3: 17 May
During Step 3 most sectors are able to reopen. The working from home advice remains in place but during May (ahead of Step 4) the Government will complete a review of social distancing measures and other long-term measures used to limit transmission. Depending on this review guidance on working from home may change together with the rules on 1m+ distancing, face masks and other measures. Staff should continue to work from home where they can until the review is complete.
Step 4: 19 July
By this stage the Government hopes to be able to remove legal limits on social contact. If the data and reviews support this, it appears the working from home guidance may be removed, or perhaps placed at employer’s discretion.
In the meantime employers should continue working from home where possible, in keeping with government guidance, and considering the three tests outlined by the CIPD when planning any return to the workplace.
Q: What are the new quarantine rules?
The new quarantine and travel rules are complex and are reviewed regularly during the pandemic. The plan is to ease lockdown restrictions in England in four steps and employers should regularly check for up to date UK Government advice.
People leaving the UK
Although lockdown easing begins in March 2021 everyone in England is still required to stay at home unless they have a ‘reasonable excuse’ for leaving. From 8 March, the stay at home restriction is amended to enable leaving home for recreation as well as exercise outdoors. Scotland, Wales and Northern Ireland are also in lockdown and have their own travel rules, which differ slightly.
These restrictions stop most national and international travel, other than for very specific, legally permitted reasons. These are the same as the reasonable excuses for domestic travel, including:
- Work that cannot be done from home
- Medical appointments
- Educational reasons.
People arriving in the UK
In addition to the lockdown restriction, additional rules state that a travel corridor closure order is in force. This means that the UK travel corridors, which have allowed arrivals from some countries to avoid quarantine, are now suspended.
Everyone arriving in the UK will now have to quarantine and take two coronavirus tests while isolated.
All travellers arriving in the UK (including by boat, train or plane) from other countries must fill in a passenger form before arrival, listing their contact details, departure country and their UK address. Travellers must show proof of a negative COVID-19 test, taken in the 72 hours before travelling, to be allowed entry. Border Force officials will undertake spot checks. Even with a negative test anyone arriving in England then also has to self-isolate for 10 days. From 15 February, arrivals will also have to take a coronavirus test on days two and eight of quarantine, which they will have to pay for. If they test positive, they must self-isolate for a further 10 days.
This can be reduced to five days if they then pay to take another test (see below); if this is negative no further self-isolation is required.
At least the 10 day quarantine will apply, no matter which country the person has come from. However, arrivals from certain red list countries will have to undertake quarantine in a specified way (see below).
Test to release
Travellers from countries not on the red list can take a test on day five of their isolation. Anyone testing positive must then quarantine for 10 days. Those testing negative can stop isolating.
Anyone using the scheme also has to be tested on the eighth day. Passengers will be expected to use PCR tests which cost between £65 and £120, and results can be received in 24 to 48 hours. Given the requirement to be further tested, the cost, and any delay before obtaining results for most employers test to release will offer minimal advantages over a full 10 day isolation.
Red list travellers
Travellers who have been in red-list countries in the 10 days before travelling are banned from entry.
Some travellers, including children under 11 and passengers from the Common Travel Area (the Republic of Ireland, Channel Islands, or the Isle of Man) are exempt.
From 15 February UK residents and Irish nationals arriving in England from red-list countries can only enter at five airports:
- London City
- Farnborough Airfield
The UK and Irish arrivals must then must quarantine in hotels selected by the government. People entering Scotland from any country by air will have to isolate in hotels. People travelling from red list countries to Wales and Northern Ireland must book and pay for quarantine in England, due to the arrival airports listed above and lack of direct international flights.
Households can quarantine together. Penalties are high including a prison sentence of up to 10 years for those who lie about having been in a banned country.
Accommodation is booked in advance and an hotel allocated automatically through the online booking system. Arrivals are escorted straight to their hotel where they must remain in the room for 10 nights although some hotels may allow them to exercise. Security guards accompany people if they go outside for exercise.
Sanctions and costs
In England costs for red list arrivals to cover transport, tests, food and accommodation are:
- passenger travelling alone cost £1,750
- additional adult or child over 12 cost £650
- children aged five to 12 cost £325.
- Arriving without an advance booking: fine of £4,000.
- Failing to quarantine in a designated hotel: fine of £5,000 to £10,000.
- Lying on their passenger locator form about having been in a country on the red list: prison sentence of up to 10 years.
- Failure to undertake self-isolation at home in accordance with the rules, leads to fixed penalty notice of £1,000 for a first offence, increasing to £2,000 for a second offence.
- Further repeat offences will attract penalties of £4,000 and then £10,000 for each repeat offence.
- Failure to provide accurate passenger locator form details or failure to update details if the traveller needs to change locations where they continue self-isolation: fine of up to £3,200.
Airlines can also be fined £2,000 for passengers arriving without a completed form and advance negative test.
- Hauliers travelling from Portugal can travel to England without an hotel quarantine or presenting a negative test.
- A small number of workers are exempt from quarantine, including pilots and some seasonal agricultural workers.
Q: What do employers need to know about the traffic light system for employees who travel overseas?
Under the government roadmap international travel resumes from 17 May 2021 in limited circumstances. A COVID-19 charter sets out passengers’ rights and responsibilities. The initial country categories will be reviewed again on 28 June followed by further reviews no later than 31 July and 1 October.
It’s important to remember that non-essential international travel for holidays is still highly restricted, and travel is only possible for limited essential purposes. There are slightly different COVID-19 rules in England, Scotland, Wales and Northern Ireland. From 17 May people in England will not need to complete a declaration form to travel abroad.
Passenger locator forms mean that all those returning to or arriving in the UK will have to fill in their travel details, a UK address, passport details and COVID test booking reference numbers. The testing rules for returning are summarised below. There will also need to be a quarantine hotel booking (if travelling from a red list country). This system should be digital by autumn 2021.
Traffic light system
The restarting of foreign holidays and other overseas travel is based on rating countries either green, amber or red under the traffic light system. There are different restrictions in each of the three categories with different rules regarding quarantine for returning travellers for each list. Those who test positive will be required to self-isolate for 10 days at home. Vaccinated travellers are not exempt from taking any tests because of the risks of new variants.
Business travel and holidays
It is important to distinguish the differences between the rules for business and leisure travel under the traffic light system. It is clear that people should not travel to amber or red list countries for holidays and most of the government guidance relates to leisure travel.
Both before and after the traffic light system, it appears that travel for work purposes is permitted provided that it is not reasonably possible to complete that work within the UK. This includes certain essential work, for example those working on critical national infrastructure including the national rail network, those who regularly work abroad and those working in national security or diplomatic purposes. As many examples of essential business travel were allowed before 17 May presumably this is allowed after that date too. The position with respect to for business trips to ‘red list’ countries is not entirely clear and should be avoided and minimised. Business travel to green countries is permissible. Travel for business to amber list countries is permitted as long as the testing and quarantine requirements are complied with.
Employers must remain well informed of the latest travel restrictions, regulations, security, and medical issues and communicate the latest position in order to protect their workforce fully. Employers must update their travel policies, risk assessments and plan carefully for each trip including consideration of COVID vaccination status. Plans need to be flexible and adaptable including mental health support for staff who are overseas or have returned to quarantine as a result of business travel.
The categories and restrictions are as follows.
People from green countries do not need to quarantine on their return, unless they receive a positive test. People arriving in the UK from green list countries will need to take both of the following steps:
- Take a lateral flow or PCR test before their departure from that country. The Government hopes to provide free rapid lateral flow tests for travellers to take away with them and use before they return. People buying their own pre-departure tests must ensure they meet UK Government standards.
- Take a second test on or before the second day after arriving in the UK. This must be a PCR test (not a lateral flow test). These tests must be booked and paid for before travelling. The booking must be from the Government's approved list of private test providers and must be confirmed on a passenger locator form.
- Australia, New Zealand, Singapore, Brunei and the Faroe Islands severely restrict overseas visitors.
- Portugal allows travellers who have had a recent negative test, have recovered from the virus and therefore have antibodies, or had both doses of a vaccine.
- Gibraltar will not require UK visitors to be tested or vaccinated.
- Israel will allow tourists who have had both jabs.
The countries at risk of moving from green to amber will be added to a ‘Green Watchlist’. Booking holidays to these countries means there is a risk of quarantine if the status changes during the time abroad.
The majority of countries are on this list include popular UK holiday destinations such as Spain, France, Italy and Greece. However, government advice is that people should not visit these places for leisure purposes. People arriving from amber list countries will have to quarantine at home for 10 days when they return. They will also have to take both of the following steps:
- Take a test, which can be lateral flow or PCR test before their departure.
- Take a PCR test on days two and eight during the 10-day quarantine at home.
People should not go on holiday to the countries on the red list. This includes Brazil, India, South Africa, Turkey and the Maldives. People arriving from red list countries will have to quarantine for 10 days in a specific quarantine hotel which will cost £1,750. They will have to take both of the following steps:
- Take a test, which can be lateral flow or PCR test before their departure.
- Take a PCR test on days two and eight during the 10-day quarantine in the hotel.
Employees will need to check advice, incidence rate and the healthcare provision for all the countries they visit or transit through. This can be done by subscribing to travel advice email alerts for the relevant destination, and transit countries. Travellers should ensure their insurance has the appropriate level of cover, as standard travel insurance policies will not cover countries where the UK government do not advise non-essential trips. Specialised insurance may be available. The current safe air travel guidance should also be followed which may involve wearing a face covering on flights.
The countries that are reopening may allow non-essential travel from countries with low COVID infection rates. By the start of June UK holidaymakers who have been fully vaccinated with a final dose of an authorised vaccine at least 14 days before arrival may be allowed in to more EU countries. However, the current government advice is that EU holidays can only be to Portugal, Gibraltar, Malta, or Iceland. Employers may see UK employees hoping to take a European holiday later in the year and should plan for handling these employees upon their return to work bearing in mind they should have been tested as part of the return procedure.
The system and countries falling into each category in the traffic light system is likely to change and employers should keep up to date with the changes. Further information on employers’ options are contained in the Q: How should we handle any quarantine period for employees who have been travelling to certain destinations? Can we insist they take the 10 days as annual leave?
Q: Can employees now travel to all international countries for work and leisure purposes, and what are the exemptions from the international travel quarantine rules?
Non-essential travel was banned for the first four months of 2021 with people only being able to travel internationally if they had a legally permitted reason such as needing to travel for essential work. Increased international travel resumes from 17 May 2021 and some leisure travel is permitted, however this is very limited. The new traffic light system categorises countries based on their COVID risk, and all travellers will still have to take tests before returning and a PCR test after arriving in the UK.
The easiest solution remains to avoid international travel in the short term, however employers and employees who plan travel for later in the year should bear in mind that we do not know exactly how rules will evolve and which countries will remain in which category. The rules in Scotland, Wales and Northern Ireland may differ slightly so employers should check the relevant websites for more information.
The restrictions on travel to and from the UK do not apply to those travelling from Ireland, the Channel Islands or the Isle of Man.
Travellers to and from the UK
Employees may go on holiday to countries in the green list of countries (where travellers have to take tests but do not have to quarantine on return to the UK) from 17 May. They will have to comply with strict testing requirements but will not have to quarantine on return to the UK.
The Government rules state that UK residents must not travel to amber and red list countries at all for leisure purposes. However, UK nationals or residents and other people can travel to the UK from amber list countries for any reason and do not have prove that their trip is essential.
Therefore it appears that essential work related travel may be permitted both to and from amber list countries. For those who have a work or other reason to visit or travel through an amber list country there are stringent testing requirements and travellers must quarantine at home for ten days on return to the UK.
Essential work-related travel may be permitted to red countries but there are the same stringent testing requirements plus a 10-day managed hotel quarantine requirements for those permitted to return to England following an essential visit to a country on the red list.
For further information on the testing requirements also see Q: What do employers need to know about the traffic light system for employees who travel overseas? (above).
During the pandemic (both before and after May 2021) employers should have a very strong reason for any business travel, but especially for travel to a country that is on the red list. Employers should always consider:
- whether their business travel insurance policy would cover any proposed trips
- the impact of the 10-day quarantine period when applicable, for any staff coming back into the UK (see Q: How should we handle any quarantine period for employees who have been travelling to certain destinations? below)
- any restrictions in the countries to which the employees will be visiting.
ExemptionsSome people don’t have to comply with all of the COVID travel requirements, because of the jobs they do. Government guidance lists an extensive range of jobs which explains which restrictions apply and which do not apply for each job.
For example, the requirement to provide contact details and address data may not apply to diplomats and consular officials, defence personnel and certain contractors or officials working on essential border security. Special rules apply to those who regularly work abroad who travel to and from another country for work at least once a week are also exempt.
There is a long list of other exceptions for certain occupations including seasonal agricultural workers, BBC broadcasting network and services staff, certain health or care professionals, certain oil and gas workers, road hauliers, nuclear personnel, specialist aerospace engineers, people engaged in urgent or essential work on electronic communications networks. Other occupations include nurses from red list countries coming to take up NHS employment. A full list of the exceptions can be accessed on the Government website in conjunction with the national lockdown rules.
Q: Can employers insist employees work from home following their return from abroad even if the country they were in wasn’t on the red list?
Many employers can insist that employees who can work from home should do so. The best approach is to agree in advance with employees when they will return to the office following their return from abroad.
The precise situation will depend upon the individual facts and contractual arrangements; for example will the employee be paid in full or would they for example lose commission by working from home? If employees lose financially by working from home, then it may be a breach of contract for the employer to insist on this unnecessarily. Other relevant factors include the employee’s vaccination and test status and which country they have been to. Some countries may restrict travel, change risk status or bring in new rules with little warning, for example due to a new COVID-19 variant.
Employers should try and agree a plan with the employee before they go on holiday. The employer will need to ensure the employee does return as planned and is working from home and does not, for example, take the opportunity for a longer holiday.
Employers should remember the following with regards to the traffic light system.
Employees returning from green countries do not need to quarantine on their return if both of their tests are negative. Therefore, employers should be able to allow employees to return to work after the negative tests. If the employer wishes to be extremely cautious then the employee could agree work from home for 10 days if they have work that can easily be done from home (although this seems unnecessary given the test results). Obviously if the employee had a positive test normal quarantine arrangement would apply.
Employees returning from amber list countries should normally work from home upon their return as they have to quarantine at home for 10 days when they return. These employees will have taken lateral flow or PCR tests before their journey home and a PCR test on days two and eight during the 10-day quarantine at home. The employer can ask the employee to end self-isolation early by purchasing an extra PCR test on day five- known as test to release. This would mean the employee could return to the workplace if the test is negative. However, given the costs of purchasing the tests, working from home for 10 days may be the most straightforward solution. Alternatively, the employer may offer to pay for the extra early release test.
Employees arriving from red list countries must quarantine for 10 days in a specific quarantine hotel which will cost £1,750. They will take lateral flow or PCR tests before their departure and PCR tests on days two and eight during the 10-day hotel quarantine. Employers may ask the employee to work during their time in the hotel.
For details of the differing quarantine requirements under the traffic light system please see Q: What do employers need to know about the traffic light system for employees who travel overseas? (above).
For further information on employees who cannot work from home and pay during any quarantine or isolation period see the Q: How should we handle pay for any employees who have to quarantine or isolate following a return from holiday? And Q: How should we handle any quarantine period for employees who have been travelling to certain destinations? Can we insist they take the 10 days as annual leave? (below).
Q:How should we handle pay or salary for employees who have to quarantine or isolate following a return from holiday?
If the employee can work from home or in their quarantine hotel then they may expect to be paid as normal. However, the employer may not be obliged to pay if the employee cannot undertake their normal work or be allocated a special project.
If the employer has sent the employee on a business trip and they must self-isolate on their return it would be advisable to pay them in full during the 10 day isolation period. Penalising an employee financially following a return from business travel could be a breach of the implied term of mutual trust and confidence and could lead to a constructive unfair dismissal claim.
As employers have health and safety obligations to other staff they may decide that ensuring self-isolation rules are adhered to protect others in the workplace means they should simply keep paying the employee for remaining at home or being in a quarantine hotel even if they cannot work. This would effectively amount to granting additional paid time off work in addition to normal holiday leave or could mean using up the employee's annual leave (see Q:Can we insist employee take the 10 days quarantine period as annual leave? below). Additional paid leave may be appropriate if home working is not an option and if the employer can afford to do this. This solution may be most appropriate if the quarantine was imposed suddenly.
Employers could agree with employees that any quarantine period be taken as a period of unpaid leave if home working is not an option.
SSP during quarantine
Any individual self-isolating because they or someone in their household has COVID-19 symptoms can claim SSP. Additionally those on isolation under the test and trace scheme can claim SSP, but a post-holiday quarantine period is different. If an employee chooses to go on holiday, they have taken the risk and presumably knew of the requirement to quarantine upon return. The existing rules only enable claims for SSP if it is ‘known or reasonably suspected that the individual has been in contact with a case of, a relevant infection or contamination’. Returning from travelling does not necessarily lead to a reasonable suspicion of contact with someone infected with coronavirus.
If the employee tests positive at their end of holiday then SSP should be available. In other cases where the employee has a negative test and no symptoms treating a post-holiday quarantine period as sick leave is not a viable option. Post travel quarantine is not a ground for claiming SSP. Most company sick pay schemes are also unlikely to cover this either but an employer can choose to pay sick pay at the same rate as SSP or higher.
If the employee begins to show symptoms at any point including any 10-day quarantine period then the usual rules and processes around sick leave and SSP apply (more information on coronavirus statutory sick pay can be found in the FAQs on managing employees who are self-isolating or who have symptoms below).
Other options may include attempting to impose limits on employees’ ability to travel abroad in the first place, requiring the employee to take annual leave, or placing employees on furlough (although this is not really the purpose of the scheme). For further information on these options see the Q: Can we insist employee take the 10 days quarantine period following return from a holiday as annual leave? and Q: How should we handle any quarantine period for employees who have been travelling to certain destinations?
Q: Can we insist employee take the 10 days quarantine period following return from a holiday as annual leave?
Under the traffic light system (applicable from 17 May) employees will have to either quarantine at home or in an hotel for 10 days following their arrival in England (different rules will apply in Scotland, Wales and Northern Ireland). Employers can ask employees to take any such 10 day quarantine period as annual leave but there are some legal risks to this approach.
Alternatives may include agreeing to a period of unpaid leave or imposing travel restrictions if the 10-day quarantine period is known and will affect the employees' ability to work on return home (see our separate Q: How should we handle pay or salary for employees who have to quarantine or isolate following a return from holiday? and Q: Can employers deny holiday to employees where it is known that they will have to quarantine on their return?)
Previous government advice lists using up annual leave as an option for the quarantine period which does give employers some justification in enforcing such a rule. However, this approach is not without difficulty under current employment law:
- To insist the 10-day quarantine is taken as annual leave employers can introduce a temporary policy across the workforce that anyone who travels overseas to a country subject to this quarantine must take the time as further annual or unpaid leave.
- The unilateral change in terms and conditions would amount to a breach of contract so employees could theoretically leave and claim constructive unfair dismissal. Ideally, they should agree to the change.
- In addition to the potential unfair dismissal risk for those who disagree, there is also a potential risk of a discrimination claim because those of certain nationalities who wish to visit relatives will be disproportionately affected, although the employer may be able to justify this. Many employees may accept the change rather than resigning in response and bringing a claim. However, there is at least a risk some will threaten proceedings.
Normally employers can specify when employees take leave if they give the appropriate notice but being quarantined at home or in a hotel is not the purpose of annual leave.
Q: What do employers do if an employee goes on holiday to a country and a quarantine is imposed suddenly for those returning from that destination?
Once national lockdown ends, non-essential foreign travel is likely to remain off limits, as government ministers have focussed on summer holiday breaks in Britain.
The government taskforce is looking at a framework to allow vaccinated individuals to travel more freely internationally. This involves working with other countries and the World Health Organisation to adopt a clear international system for passengers and the travel industry, but this will take time to implement. The taskforce reported on 9 April, with recommendations about a return to international travel, but restrictions on travel remain in place until 17 May. The devolved administrations in Northern Ireland, Scotland and Wales will have their own respective rules and regulations on travel.
Any scheme is likely to involve vaccination, testing and isolation but is dependent on the evidence on transmission and efficacy against new variants. Prior to the report the stages are as follows:
Step 1 (March 8 and 29)
Travel abroad for holidays is still not be permitted and, from 8 March, outbound travellers must provide their reason for travel on the Declaration to Travel form. From 29 March people should continue to minimise travel including within the UK, and must not be staying away from home overnight at this stage.
Step 2 (no earlier than 12 April)
People should continue to work from home where they can and minimise domestic travel. International holidays are still prohibited. The Global Travel Taskforce reported on 9 April with recommendations aimed at facilitating a return to international travel while still managing the virus risk including any new variants.
Step 3 (no earlier than 17 May)
International travel review may resume, subject to restrictions under the traffic light system (see Q: What do employers need to know about the traffic light system for employees who travel overseas? above).
Step 4 (no earlier than 19 July)
International travel may have resumed subject to quarantine, isolation and vaccination requirements.
Once employees can take foreign holidays or are about to depart, if a quarantine is suddenly imposed for people returning from that destination, employers will need to be flexible and assist employees with following the quarantine requirements upon their return. Employees also need to be responsible and flexible; disputes may arise if some notice is given that a quarantine is imminent and the employee could perhaps have avoided the sudden quarantine by returning home promptly.
By way of example of a sudden quarantine, people returning from Spain to the UK at the end of July 2020 had to unexpectedly quarantine for two weeks when the Government removed Spain from the safe list of countries. Many employers and employees were completely unprepared for this decision. In the future more countries could similarly be removed from any travel safe list at short notice (as happened with Spain, Belgium and France and other countries' removal of the UK for example) - risking quarantine for travellers on their return. The priority for employers and employees is to co-operate with the requirement to stay at home to stop the spread of the virus. Employers can advise employees to build in some contingency planning so that, for example, they return home a few days before they are due back at work. This at least gives employers time to plan replacement cover if needed but of course employers cannot dictate how employees structure their holiday time.
The basic options for quarantined employees are:
- Working from home if possible
- Paid leave
- Unpaid leave
- Using annual leave
For further details on these options see the Q&A on handling quarantine periods (above).
Employees faced with a sudden quarantine period cannot claim SSP if they need to quarantine because of the trip. SSP may be payable if they have symptoms or are contacted by the track and trace service.
Q: How should we handle any quarantine period for employees who have been travelling to certain destinations?
Employers should consider setting out their expectations regarding quarantine periods in a holiday or coronavirus policy. This ensures that staff understand what might happen if they return from holiday abroad and are have to self-isolate afterwards. Things to consider include notifying the employer whether they have travelled to a red, amber or green destination , reporting their absence, how absences will be recorded and whether they will be paid during quarantine and, if not, whether they can take paid holiday.
Between January and May 2021 the national lockdown prohibited non-essential international travel for UK residents. In addition, since 18 January, all international passengers coming into the country have had to show proof of a negative COVID test and non-UK travellers who have been to certain destinations in the 10 days before travelling are completely banned from entry. From 15 February UK residents and Irish nationals arriving in England from certain destinations must also quarantine in hotels selected by the government.
As lockdown measures are slowly eased employees will be permitted to travel abroad for work or personal purposes from 17 May and the detail set out below reflects the traffic light system as summarised in our Q: What do employers need to know about the traffic light system for employees who travel overseas? (above).
Employers should remember that decisions to impose a quarantine on travellers may be very sudden. A destination may be on the safest green list of countries but then the status changes rapidly leaving employers and employees with no time to plan ahead.
Employers must have open discussions with employees about holiday plans to countries where quarantine is required upon return and proposals for that quarantine period upon their return. This applies whether the quarantine was known in advance or imposed suddenly. Employers need to plan for the impact of any potential 10-day quarantine periods on employee’s work and the wider team.
Minimise business related travel
Avoiding business related travel where possible applies even when the rules change. The red list countries should be avoided unless employers are prepared for employees to have extended absences to follow the hotel isolation rules on their return. Travel should still be limited to essential travel and should be to countries that permit visits from the UK. Some employers or work may be permitted or fall into an exempt category.
Discuss the quarantine requirements with the employee before he/she goes away
Advance discussions will ensure everyone understands the rules that apply in the country they are visiting and the rules that apply on their return. Employers should agree how the employee's return will be managed. Employers should be aware of any last-minute changes to quarantine rules and reassure employees that an agreed plan can be implemented.
There are various options for employees who do visit countries overseas. Potential options include:
Unpaid, paid leave or SSP: If the employee cannot work from home, then then unpaid or paid leave may be an option although ideally the employee should agree. For further details of the position with respect to pay during the 10-day period and information on claiming SSP in limited circumstances see Q: How should we handle pay or salary for employees who have to quarantine or isolate following a return from holiday?
Discouraging employees going to certain destinations: Employers can try and discourage employees from travelling to red and perhaps amber list destinations by emphasising that when they have to self-isolate/ quarantine on their return, they will not be paid. (See Q: Can employers deny holiday to employees where it is known that they will have to quarantine on their return? for further details.)
Furlough: Another option may be to furlough the employee for the time they're self-isolating if both the employer and employee agree. The furlough scheme will be extended until the end of September with employers paying 10% towards the hours their furloughed staff do not work in July 2021 rising to 20% in August and September 2021.
Dismissal: Under previous government advice a potential further option is listed as dismissal, although this is then discounted as the advice says this should be a last resort and that employers should consider alternative arrangements first. These alternatives include those listed above, such as agreeing with employees to take annual leave or unpaid leave. Although the government advice lists dismissal as an option, it is extremely high risk option. Dismissing an employee because they travelled to a country where they have to isolate for 10 days afterwards is likely to give rise to a claim for unfair dismissal, especially if the government changed the rules when they were abroad.
A 10 day absence from the workplace may not count as the statutory ‘fair’ reasons for dismissal of misconduct and even if it did, dismissal would not be within a band of reasonable responses. However disciplinary action would at least be justified.
Dismissal of an otherwise exemplary employee because they travelled to a country out which was placed on a red or amber list is likely to be unfair and may be discriminatory depending on the exact circumstances, the employee’s period of continuous service and their reasons for travel. Where possible, employers should explore the option for the employee to work from home or to agree a special project that can be completed from home.
For sanctions for breaching quarantine rules including fines of up to £10,000. See Q: What are the new quarantine rules? (above)
Role of testing
Employees who have been to green list countries should be able to return as long as they have a negative PCR tests following their return.
The Test to Release scheme applies to all those who need to self-isolate on return to England from amber destinations. These people can choose to pay for a private COVID-19 test after day 5 of their isolation period. If the result is negative, they can stop self-isolating although they will only be able to return to work if the employer agrees and this complies with the lockdown rules in place at the time.
The extra test can only be taken five full days after the person left their destination which was not on the travel corridor list. If people are not on the Test to Release scheme they will need to self-isolate until 10 full days have passed. The key points of the system are:
- All people must continue to self-isolate while awaiting the test result.
- Travellers opt into the scheme on the passenger locator form and book a test with a private test provider before travel to England so they can enter details of the test on the passenger locator form.
- Employees who decide to take part in the scheme after arrival in England may need another passenger locator form.
The scheme gives employers little advantage because employees returning from somewhere not on the travel corridor list still must self-isolate on arrival in England. The earliest they can take the test is 5 full days after they were last in a place that is not on the travel corridor list. So in most cases this will be on the 5th full day of self-isolation, they must then take the test and get results. So realistically a negative result may end up only reducing the isolation period slightly.If any test is positive the person will need to self-isolate for another 10 days counted from the day of the test, or the first symptoms if that is earlier. People in the same household should also self-isolate for 10 days from the date of the positive test. Further PCR tests are required on days two and eight of the 10-day quarantine period, whether isolation is at home for arrivals from amber countries or in a hotel for arrivals from countries on the red list.
Any inconclusive test result means self-isolation must continue for 10 days or until another privately provided test produces a negative result.
Q: Can employers deny holiday to employees where it is known that they will have to quarantine on their return?
During the 2021 national lockdown, non-essential international travel was mostly prohibited. However, once the lockdown is progressively lifted and travel restrictions start to ease (from 17 May onwards) employees may attempt to travel on holiday despite quarantine rules being in place in various destinations.
The best way to deal with proposed personal travel is for employees and employers to openly discuss travel plans and follow the latest Government guidance, including the requirement for a 10-day quarantine period either at home or in a hotel upon return to the UK when returning from certain destinations. However, under normal working time rules employers can cancel any annual leave that has already been authorised, so long as the minimum notice is provided.
Cancelling employee's holiday
Employers can revoke pre-authorised leave by giving a period as long as the amount of leave the employee has requested (unless agreed otherwise). For example, employers need to give two weeks’ notice cancelling two week’s holiday (if the employer requires the employee to take leave, the notice period is longer and must be at least twice as long as the period of leave to be taken). An employer should not cancel a period of annual leave if it means that the employee is not able to take their full statutory annual leave entitlement in that leave year.
If an employer cancels a period of leave and the employee cannot go on a booked holiday and suffers financial loss, the employee may say that the cancellation is a breach of the implied duty of mutual trust and confidence entitling them to leave and claim constructive unfair dismissal. Cancelling booked period of annual leave should only be contemplated to meet business needs and the employee could be offered compensation for any inconvenience and loss. Cancelling pre-booked holiday at short notice will have serious employer/employee relationship implications which is why agreement is preferable.
Employers can discourage them from travelling abroad especially to amber and red destinations by pointing out that any self-isolate/quarantine on their return, they will not be paid.
If the employee has already booked a holiday, perhaps based on leave which was approved before the current country categorisation and travel restrictions were known, then the employer is causing financial loss to the employee. The safest course of action is to allow the employee to take their holiday but try and find work they can do at home upon return during the quarantine period, even if this is a special project.
Employers imposing future temporary travel restrictions
Employers could impose a temporary policy advising employees in advance not to travel to countries on certain lists. However, enforcing this by dictating what an employee can do with their leisure time will not be a lawful and reasonable instruction from an employer in all situations. The employer can argue that they have a duty to take care of other staff which justifies the restriction. However, the employee may be going to a relatively safe destination or the country may not have been on a high risk list when it was booked.
Employers who ban future private travel, even temporarily, may disproportionately affect certain groups and this could be indirect race discrimination. However, employers may decide that their duty to protect other staff is worth taking the risk of a potential discrimination claim. Employers can defend indirect (but not direct) discrimination claims using the ‘proportionate means of achieving a legitimate aim’ defence. The fairness of a travel ban for employees depends on the length, destination, the level of risk, the employee’s reason for wishing to travel, when the quarantine for that country was imposed and the overall situation at the time. An absolute ban may not be reasonable if the only downside is the employee having to self-isolate after returning.
If employers target certain staff specifically and request them not to travel or come to work this could lead to direct race discrimination claims. Any request to avoid travel and not attend work should apply to all staff regardless of nationality or ethnicity and be linked to potential exposure to the virus not racial origins.
Q: What happens if an employee contracts coronavirus? Do they still get full pay or sick pay?
If an employee contracts coronavirus, this should be treated in the same way as any other sickness absence in terms of payment. If the employer normally only pays statutory sick pay (SSP) during sickness absence, then this is what the employee should receive subject to meeting the qualifying criteria. Employees who are self-isolating in accordance with government advice are also eligible for SSP. The self-isolation must be for the reasons set out in the FAQ on sick pay during the pandemic (below).
SSP is not payable to those who are self-isolating after entering or returning to the UK who do not need to self-isolate for any other reason.
The SSP rules are further summarised in the FAQ on sick pay during the pandemic but employers who can afford to do so may also wish to apply some flexibility, especially if the employee has contracted the virus due to exposure at work, and may consider increasing payment from the SSP amount.
If a furloughed employee becomes sick, the employer can decide whether to keep them on furlough or switch to SSP. Employers with staff on furlough can continue to claim the percentage of salary through the furlough scheme. If the employee is moved onto SSP, the employer can no longer claim their salary through the furlough scheme but may be able to claim reimbursement for the SSP if the employer qualifies for this.
Q: How does the statutory sick pay (SSP) scheme operate during the coronavirus pandemic?
The Coronavirus Statutory Sick Pay Rebate Scheme reimburses SSP for employers with 250 employees or less for up to two weeks of SSP starting from the first day of sickness. Employers do not need to ask employees for a doctor’s fit note (also known as sick notes) before making a claim.
The scheme covers all types of employment contracts, including full and part-time employees, and employees on agency, flexible and zero-hour contracts. It applies to employees whose periods of sickness started on or after 13 March 2020 and who are unable to work because they:
- have coronavirus
- cannot work because they are self-isolating at home because someone they live with has symptoms or have received NHS test and trace or public health notification that they've been in contact with someone with coronavirus
- have been advised to shield because they're clinically extremely vulnerable
- have been notified by the NHS to self-isolate before surgery for up to 14 days.
For further details on employee eligibility, see the Q&A on which employees are entitled to SSP. Employers who pay sick pay in excess of the current rate of SSP can only claim the SSP amount.
Businesses with 250 employees or less can reclaim the SSP paid for sickness due to coronavirus. How do the statutory sick pay (SSP) and fit note schemes operate during the coronavirus pandemic? The employers must be claiming for an employee who is eligible for sick pay due to coronavirus and have:
- a PAYE payroll scheme that started on or before 28 February 2020; and
- fewer than 250 employees on 28 February 2020.
For connected companies and charities, the total combined number of PAYE employees must be fewer than 250 on the above date. Employers cannot reclaim SSP if employees are off sick for any other reason.
Statutory sick pay
The SSP scheme gives qualifying employees a weekly SSP payment. In order to qualify employees must be absent due to incapacity resulting from illness. The SSP regime has been adapted to extend eligibility to those who do not have symptoms of COVID-19 but, for example, are self-isolating due to NHS advice.
Normally SSP is not payable during the first three qualifying waiting sick days. HMRC has issued guidance on the coronavirus SSP rebate scheme which removes the normal three-day waiting period before SSP is payable if the incapacity for work is related to COVID-19. If an employee’s illness is not related to coronavirus, SSP is still only payable from the fourth day they are off work sick.
- Someone is off sick with symptoms (which are later confirmed) will get SSP from the first day of sickness.
- Employees who test negative for COVID-19 within the first three days of self-isolation will not be entitled to SSP.
- Someone sick for more than three days who ends up not having Coronavirus would get SSP but not for the first three waiting days.
- Someone with at least four days of incapacity from work will be eligible for SSP (i.e. the employee has self-isolated for at least four days).
Normally employees self-certify for seven-day absences and obtain GP’s fit notes (or sick notes) for longer absences. During the pandemic GP services are limited and the NHS advises that employees should not ask for fit notes due to coronavirus but can send employers an NHS online isolation note as evidence of illness.
To reclaim SSP employers do not therefore need a doctor’s fit note but can request either:
- an isolation note if they are self-isolating and cannot work because of coronavirus, or
- a ‘shielding note’ or a letter from their doctor or health authority advising them to shield because they’re at high risk of severe illness from coronavirus.
For further detail on fit notes, see our Q&A on whether employees need a medical certificate or fit note.
Company sick pay
Employers who pay company sick pay may be compelled under the scheme (or may choose) to provide enhanced sick pay. Employers need to revisit the scheme rules as employees may need to be symptomatic to meet definitions of illness. Employers may consider amending their sick policy to entitle employees to company sick pay even if they are asymptomatic to encourage them to comply with the law and government guidance. Employers can always choose to pay company sick pay or full pay to encourage employees to self-isolate. If employers operate SSP only for the 2020/2021 financial year this is £95.85 per week.
Some lower paid employees who have to self isolate and cannot work from home and are claiming certain benefits may be eligible for a one-off payment of £500 through the Test and Trace Support Payment scheme from the local authority. See our summary table of the different government support schemes for more information.
Employers must keep records of all the SSPs they are claiming from HMRC for three years including:
- the reason why an employee could not work
- details of each period when they could not work, including start and end dates
- details of the SSP qualifying days when the employee could not work
- NI numbers of all employees who the employer has paid SSP.
Employees on sick leave or self-isolating in receipt of SSP can be furloughed afterwards.
More information is available on the government website.
Q: Which employees isolating due to symptoms or exposure to COVID-19 are entitled to SSP?
Obviously, employees with symptoms which mean they are too unwell to come to work to be entitled to the employer’s usual SSP or company sick leave and pay. Even if the employee only has mild symptoms, under government guidance they must self-isolate for ten days at home and are entitled to SSP.
Self-isolation periods may be more than 10 days if there are the symptoms do not go away.
The SSP regulations have therefore been amended several times to extend entitlement to other employees with mild or no COVID-19 symptoms if they can’t work from home. The employees covered include those:
- Self-isolating for 10 days with COVID-19 symptoms.
- Self-isolating for 10 days due to living with someone with symptoms.
- Notified to self-isolate by NHS Test and Trace unless they can work remotely.
- Living with someone who has symptoms or tested positive for COVID-19.
- In a support bubble* with someone who has symptoms or tested positive for COVID-19.
- Unable to work from home and have written notification of a medical procedure in hospital who have been advised to self-isolate before admission. (Patients needing surgery may have to self-isolate for between 3 and 14 days before the operation depending on their doctor’s advice. Any testing for COVID-19 before admission and whether patient is at higher risk due to pre-existing health conditions will affect the length of self-isolation before admission.)
- Who are clinically extremely vulnerable and have shielding notification letter because of being at very high risk of severe illness from coronavirus and live or work in an area with local or national restrictions (see below for more on shielding).
- Officially notified by a local authority contact tracing team and told to self-isolate for 10 days because they have been in close contact with someone who has tested positive for COVID-19.
*note that support bubbles or linked or extended households vary across the UK. A linked household in England and an extended household in Scotland are for single adults and single parents with children under 18 who link together with another household. In Wales extended households are two households that have agreed to be treated as one.
Clinically extremely vulnerable (CEV): Those identified as clinically extremely vulnerable (CEV) to coronavirus were advised on 5 December to stay at home and avoid attending work, school, college or university. They should limit the time spent outside the home and only go out for medical appointments, exercise or if it is essential. If they cannot work from home, they must not attend work and will be eligible for SSP. When shielding was previously paused at the beginning of August any entitlement to SSP ended. With the further lockdowns shielding has begun again and previous shielding notification letters should have been updated for employers to use as evidence for SSP purposes.
CEV people are still advised to follow shielding guidance, limiting time outside the home to exercise and attending medical appointments only. However, by the time Step 1 of the programme to ease lockdown begins in March 2021 those aged 70 and over and the clinically extremely vulnerable should have received protection from their first dose of the vaccine. By the time they have received their second dose the UK Government anticipates that it will no longer be necessary to advise shielding beyond the end of March 2021. Although this group has been prioritised for vaccination the UK Government is considering the long-term support that may be needed, especially for those who cannot be vaccinated or do not receive a significant increase in immunity from the vaccine. Employers should check updates to Government advice to keep CEV people safe. There is separate advice for people who are CEV who live in Scotland, Wales or Northern Ireland.
Other clinically vulnerable people who are not classed as extremely vulnerable are still at higher risk from COVID-19 and have to minimise contact with others outside their household. However, if they are not extremely vulnerable they are not entitled to SSP unless told to self-isolate or they are sick. If they cannot work from home employers may be able be to leave these vulnerable employees on furlough or other options including paid or unpaid leave.
Employees officially notified by NHS Test and Trace service or local authority contact tracing teams and told to self-isolate are entitled to SSP. The position is less clear regarding alerts from the NHS COVID-19 app notifying contact with someone who has Coronavirus, as this is not the same as self-isolation advice but SSP is probably not payable.
SSP is definitely not payable if the employer’s own tracing system warns there has been contact with someone with Coronavirus.
Dates: The main ‘qualifying day’ off work someone who lives someone with coronavirus symptoms or has tested positive for coronavirus is 13 March 2020. However other people became entitled to SSP on or after the following dates:
- 16 April 2020 – for employees who were shielding under the system applicable at that time.
- 28 May 2020 – for employees notified by the NHS or public health authorities that they’ve been in contact with someone with coronavirus.
- 6 July 2020 – for those with someone in their support bubble (or extended household in Scotland or Wales) having symptoms or testing positive for coronavirus.
- 26 August 2020 – for employees advised by a doctor or healthcare professional to self-isolate before going into hospital for surgery.
Q: Is there any financial support for individuals in areas with high incidence of COVID-19 who can’t work from home but are required to self-isolate by NHS Test and Trace?
Test and Trace support scheme
On 20 September 2020 a government press release confirmed a Test and Trace Support payment scheme paying £500 to both employed and self-employed people in England on low incomes who are required to self-isolate from 28 September. This is designed so that those on low income can self-isolate without breaking the rules and working away from home. The payments will not reduce any other benefits. In Wales please note there is an NHS Wales Self-Isolation Support Payment too.
The schemes only support people who are asked to self-isolate by NHS Test and Trace, including by the NHS COVID-19 app.
The self-isolation days are measured either from the point the person first developed symptoms, or from when they were most recently in contact with the person who tested positive.
If the NHS COVID-19 app tells you to self-isolate because of close contact with someone who has tested positive, there are steps to follow to request your NHS Test and Trace Account ID.
Eligibility requirements for support payment
To be eligible for support payment the person must live in England (or Wales) and:
- have been asked to self-isolate by NHS Test and Trace
- cannot work from home and will lose income as a result
- be claiming at least one of the following benefits: universal credit, working tax credit, income-related employment and support allowance, income-based jobseeker’s allowance, income support, pension credit or housing benefit.
Test and Trace support payments are applied for through the local council. As well as the payment for those in receipt of the relevant benefits, there is also a £500 discretionary payment which may involve additional locally set criteria, which are down to the discretion of each local authority.
To apply, the relevant information and documents include:
- proof of a positive test
- the notification from NHS Test and Trace
- an NHS Test and Trace 8-digit code provided by the local authority as an account identification number (referred to as an ITS or CTAS number)
- a bank statement
- proof of employment or evidence of self-assessment returns for the self-employed, plus trading income and proof that the business delivers services that cannot be undertaken without social contact.
To ensure compliance, NHS Test and Trace call handlers will make regular contact with those self-isolating and report any suspicion of non-compliance to the local authority and police. In addition:
- The police will check compliance in high incidence areas and in high-risk groups, based on local information.
- High-profile and egregious cases of non-compliance will be prosecuted.
- The police will act on reports from friends, neighbours and other third parties who report people who have tested positive and are not self-isolating.
Under the previous scheme, employed people had to show proof of employment, and self-employed people had to show both evidence of trading income and that they are unable to carry out their business activities without social contact. The local authority can liaise with Test and Trace to confirm the individual has been asked to self-isolate, check for fraud and ensure the individual is unable to work from home.
From the 28 September there is a legal obligation to self-isolate, with larger fines for those who break the self-isolation rules starting at £1,000. There are similar penalties for those who break quarantine after international travel. The fine can be up to £10,000 for repeat offences, which the government referred to as ‘the most egregious breaches’. The increased fines would apply to someone who prevents others from self-isolating. For example, any employers insisting that self-isolating staff still attend the workplace would have to pay this increased fine if reported.
Q: What happens if an employee needs to self-isolate?
In accordance with Government advice, if an employee has symptoms, however mild, or is in a household where someone has symptoms, they should self-isolate, as should everyone in their household. These people should not leave their house or go to work and employers should advise them to follow the Government's self-isolation advice and ask for a test. If a test is negative, then isolation is no longer required although the applicable national lockdown (or tier restrictions) will apply.
Testing and tracing
From 28 May, those in England, Scotland and Northern Ireland (and from 8 June in Wales) whose tests are positive will be contacted by the NHS test and trace service or local public health teams via a text, email or by phone. They will be asked to self-isolate for 10 days (members of their household will need to self-isolate as well) and asked for the contact details of anyone they’ve been in close proximity to and about places they have visited in the 28 hours prior to their symptoms becoming apparent. Anyone considered at risk of catching the virus will then be contacted and told to self-isolate for 10 days whether they have symptoms or not. The rest of their household does not have to self-isolate unless someone in the house becomes ill.
Testing and tracing is a public health measure, intended to inhibit the spread of the virus. It could potentially reveal hotspots where the infection rate is higher and once the national lockdown ends this information could lead to ‘local lockdowns’ to tackle flare-ups in towns, schools or workplaces.
(For more on lockdown arrangements in the devolved administrations, see Q: Are the lockdown rules different in Scotland, Ireland and Wales? in our Managing remote working and business closures FAQs.)
An NHS Covid-19 contact-tracing app will also (anonymously) alert users when they have been in close contact with someone identified as having been infected by the virus.
The Government announced measures which entitle employees who have coronavirus, or who cannot work because they are self-isolating to Statutory Sick Pay (SSP) from day one. This includes individuals who do not have symptoms, and those in the same household as others who display symptoms and are following government public health advice to self-isolate. The scheme has been extended to cover those instructed to self-isolate by the NHS test and trace service (see above).
The temporary legislation deems individuals who are self-isolating as incapable of work for the purposes of SSP.
Coronavirus Statutory Sick Pay Rebate Scheme
Employers with 250 employees or fewer can recover two weeks of SSP paid to employees for absences due to coronavirus from 13 March 2020 onwards. The scheme applies to both employees with coronavirus and those who cannot work because they are self-isolating. More information is available in our Q : Which employees isolating due to symptoms or exposure to COVID-19 are entitled to SSP? and on the Government website.
Employers do not need see an employee’s fit note to reclaim the payments. Employers who pay more than the current rate of SSP can only claim the current rate amount.
Refunds will be handled by HMRC.
Even without the government advice, it is good practice for employers to treat self-isolation as sick leave and follow their usual sick pay policy (or agree for the time to be taken as holiday if the employee requests this). Employers could also advise employees to work from home if possible. Treating the employee as being on paid sick leave or as working from home is advisable and justified. It makes sense, otherwise concerns about lost pay could lead to potentially infected people coming into work.
CIPD also recommends that employers that offer contractual sick pay should provide this if a member of staff is asked to self-isolate by a medical professional or the test and trace service even if they have no symptoms. Alternative options to providing sick pay are to allow people who are asked to self-isolate to work from home wherever possible and continue to pay as normal.
Both employers and employees have general implied duties to look after all employees’ health and safety, including complying with self-isolation advice, otherwise workplace colleagues could be exposed to infection.
Q: One of our workers has been confirmed as having the virus, should we close the workplace?Where a worker is confirmed as having coronavirus the employer does not normally have to close the workplace unless advised to do so by a Public Health authority. However, the precise position will depend upon the size and nature of the workplace and extent of the infection:
A worker with a confirmed diagnosis should stay at home with immediate effect and employers should advise them to contact NHS Test and Trace, follow the Government's self-isolation advice and take a test.
- Any employee is legally obliged to self-isolate if they show symptoms of COVID-19, or test positive and must book a test within 5 days.
If a worker has symptoms, however mild, gets a positive test result or is in a household where someone has symptoms, they should self-isolate, as should all in their household. The self-isolation must be for 10 days from the day the symptoms started.
- Workers who receive notification to self-isolate via the NHS COVID-19 app, should not attend the workplace either as the individual may be infectious and could spread the virus.
These people should not leave their house or go to work and employers should advise them to follow the latest government advice and ask for a test. Under the test and trace system, they will be asked to disclose the places they have visited in the 48 hours prior to their symptoms starting, which may include their workplace.
Staff who were exposed to the infected colleague should be sent home. Government advice states those who have been in recent close contact with an infected person should self-isolate, breaking the transmission chain.
Although businesses do not have to close because one employee has tested positive they should alert close contacts of the infected employee and follow cleaning and ventilation advice. The cleaning should entail particular attention to anywhere the employee may have touched frequently such as computer keyboards, door handles, light switches and so on.
Easing of lockdown
In the government’s ‘four step roadmap’ for easing lockdown guidance to work from home where possible remains in place until 19 July. Before then a government review will confirm the latest advice on working from home and social distancing in workplaces and generally. Many employers have already said they will require less office space and will require people to come into the office less frequently, although the Prime Minister has said that he expects people will want to return and actually see each other face to face.
The impact of vaccines will form part of the government’s review of social distancing measures and guidance on working from home. Most adults should have been offered their first vaccine by 19 July. Employers with workforces who can work from home may consider opening workplaces on a phased basis to those who have been vaccinated. The government is encouraging employers to implement workplace lateral flow testing programmes to detect asymptomatic cases and control the spread of the virus.
For more information, see the NHS test and trace: workplace guidance.
Q: If an employee was asked to self-isolate or has Coronavirus, would it breach privacy to communicate this to the rest of the employees?
If an employee is asked to self-isolate or has Coronavirus this must be communicated to the rest of the employees and, if done correctly, will not give rise to privacy problems. An employer has both a duty of mutual trust and confidence towards all employees and a duty to take care of all employees’ health and safety.
Employers must keep staff informed about potential or confirmed COVID-19 cases amongst other staff. Data protection does not prevent employers honouring their duty to the health and safety of all employees or sharing data with authorities for public health purposes. There are special exemptions in the Data Protection Act 2018 which enable employers to share information where there are risks to the wider public – overall employers must take proportionate and sensible approach.
Under the Act, personal data concerning health is 'special category data' and requires more protection. You should avoid naming individuals if possible and you shout not provide more information than is necessary.
Now that testing and tracing systems are up and running (see Q: What happens if an employee needs to self-isolate? above), employees will be contacted in any case if they have been in close proximity to a colleague who has tested positive for Coronavirus.
Workers will be told to isolate because they have coronavirus symptoms and are awaiting a test result. Those who have actually tested positive, are a member of the same household as someone who has symptoms or has tested positive, or have been in close recent contact with someone who has tested positive will also be told to self-isolate and should receive a notification to self-isolate from NHS test and trace.
Employers who have managed to ensure adherence with social distancing rules in the workplace may find that colleagues of an employee who receives an alert from a contact tracer will not have been in ‘close contact’ with that employee and may not need to self-isolate. However employers should support employees who have been in close contact or are contacted by the service and required to immediately leave work and self-isolate at home.
Employees are more likely to trust the employer’s virus management plans if there is openness about infected persons in the workplace so employers should not try to prevent people finding out, although they may wish to instruct employees not to talk to the media about any cases. Instead employers, employees and the community as a whole need to work together to minimise the virus spread.
For further details see our test and trace FAQs on what happens if a large number of employees are contacted by the test and trace service.
Q: What are the differences between furlough, medical suspension, sickness absence and self-isolation?
There are numerous legal concepts involved in employers’ responses to the coronavirus threat. Most employers should be able to implement sensible plans assisted by open staff communication and co-operation. In some cases, where there may be a lack of consensus, the legal position may need to be explored further.
State funded furlough payments are an entirely new concept in the UK workplace, introduced due to the pandemic. In essence employers can designate employees as a ‘furloughed worker’ where there is no work for them to do due to the coronavirus. The Government reimburse 80% of furloughed workers’ wages to a cap of £2,500 a month. The scheme has now been extended to September 2021. Further information is available in our Furlough FAQs.
Furlough is nothing to do with being sick but relates to downturns in employers’ businesses due to the pandemic. If employees are sick during the furlough period it appears that they can either remain on furlough or be placed onto statutory or contractual sick pay in the usual way and then back onto furlough pay unless normal working has resumed again by the time they recover.
The clinically especially vulnerable who are shielding in line with public health guidance can be placed on furlough if the employee agrees or SSP.
Suspension on medical grounds
This type of suspension does not cover the Coronavirus situation.
Suspension arises when an employer sends an employee home from work, usually on full pay. Most suspensions occur when employees are being investigated for misconduct and, more unusually, can be imposed for medical health or safety reasons, including during pregnancy to protect the employee.
The phrase 'suspension on medical grounds' is also used as a generic reference to an employer’s decision to suspend employees for medically related reasons to protect other staff. Provided this is brief and on full pay, the suspension is likely to be permissible (although strictly speaking it is not a statutory ‘medical suspension’). This is unlikely to arise in the current pandemic as the suspension should be on full pay and employers are more likely to furlough employees to obtain government support in paying their wages.
Suspension may arise if employees refuse to work from home, or do not follow precautions. There is an implied contractual duty to ensure health and safety of employees. Instructing an employee not to attend work on full pay is likely to be deemed reasonable if there are rational grounds such as trying to prevent the spread of the virus to non-infected employees to honour legal obligations to them.
Broadly speaking, sickness absence from work is absence that is attributed to sickness by the employee and accepted as such by the employer. In the current Coronavirus context it appears that sickness absence will cover employees:
- who test positive for the virus
- with potential virus symptoms
- who live with someone with symptoms or who tested positive
- who are clinically extremely vulnerable, and
- who self-isolate because they are following government advice or have been required to by the NHS test and tracing service. Employees can now also apply for online isolation notes.
- with written notification of a medical procedure in hospital who have been advised to self-isolate before admission.
Employees who are clinically highly vulnerable, and those following government self-isolation advice, are therefore likely to be on sick leave even if they have no symptoms, depending on the circumstances.
Others may be included for example those in a support bubble with someone who has symptoms or tested positive for COVID-19 - see our Q&A on which employees are entitled to SSP.
Self-isolation means staying at home and avoiding contact with other people in accordance with government advice. Employees with symptoms should apply for a test. Those who have been in close contact with a Coronavirus-infected person in the UK must self-isolate for 10 days to limit infection. From 15 June, those who have travelled abroad may be required to self-isolate for 10 days on their return to the UK (see our Q&As on quarantine, and the government website for more information).
The term 'self-isolation' is used generically and would also cover those doing so as a precaution following more distant contact with an infected person. Statutory sick pay (SSP) is payable to those with symptoms or who self-isolate on government advice. Following government legislation, this should now start on day one in Coronavirus cases rather than after the usual first three days. More information is available on the government website.
Q: Do employees need a fit note or a medical certificate?
Employees do not need the usual GP's medical certificate for most workplace absences related to coronavirus. This is to allow GPs to focus on patients. Medical evidence is not normally required for the first seven days of sickness (according to the law), ie employees can currently self-certify for the first seven days absence and do not need to get a note from a doctor or NHS 111.
After seven days, it is up to employer to decide what evidence (if any) they require from the employee. This does not need to be fit note (Med 3 form) issued by a GP or other doctor. To claim SSP because of coronavirus employees will usually provide an isolation note if unable to work because of the virus.
Employees who contract the virus or who are self-isolating for more than 7 days can apply for their isolation note (if required) through an online service from the NHS website or mobile phone app.
Alternative options include:
- A doctor’s letter or shielding note from the health authority advising shielding because of very high risk of severe illness from coronavirus.
- Notification from the NHS or public health authority to self-isolate because of contact with someone with coronavirus.
- A letter confirming the date of procedure if you’ve been advised to self-isolate before going into hospital for surgery.
A ‘fit note’ (or sick note) will be needed for those off sick for another reason.
Online isolation notes are evidence of the need to self-isolate when someone is:
- absent for more than ten days with symptoms of Covid-19
- self-isolating for 10 days, in accordance with government advice due to a household or support bubble member with symptoms
- in receipt of notification to self-isolate from the NHS test and trace service.
Some of these people may not be sick, so GPs cannot provide certificates for the purpose of illness anyway. If evidence is required by an employer, employees can obtain the online notification from the NHS website.
Employers are encouraged to use their discretion concerning the need for medical evidence and to be flexible with notes as an employee might not be able to obtain an isolation note straight away. More information is available on the Government website.
DISCLAIMER: The materials provided here are for general information purposes and do not constitute legal or other professional advice. While the information is considered to be true and correct at the date of publication, changes in circumstances may impact the accuracy and validity of the information. The CIPD is not responsible for any errors or omissions, or for any action or decision taken as a result of using the guidance. You should consult the government website for the very latest information or contact a professional adviser for legal or other advice where appropriate.
If you have other queries about COVID-19 not covered above, please contact the CIPD member employment law helpline on 03330 431 217 or visit the Community pages
We know that our members and customers are facing challenging times and we are here to help you. Due to a high number of calls we apologise that your wait time may be longer than usual. We appreciate your patience and will connect you to an expert adviser as soon as we can.
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