Employment: Travelling to and from Spain – a summer conundrum

Alex CanhamPartner, Herrington Carmichael LLP

On 25 July 2020, just as the August holiday season was arriving, the Foreign Office re-imposed a mandatory 14-day quarantine period for all those who are returning from Spain, following a rise in Covid-19 cases there. We have summarised some of the key legal principles that may apply.

Cancelling the holiday

One option for employers is to cancel the employee’s holiday before they travel to Spain, thereby preventing the need to quarantine, or alternatively requesting the employee to cancel the Spanish trip or change the destination. It is potentially a disciplinary issue if the employee continues to travel when holiday permission has been withdrawn with the correct notice.

If the employee has already paid for their holiday to Spain, an employer cancelling the holiday entitlement is likely to cause significant upset. An employer covering the cost of the holiday, unless insurance is available, may be a useful work around.

Discussion and agreement

The best way forward would be for an employer and employee to discuss any trip to Spain in an open way.  If the employee can work from home for the duration of quarantine then the issue may be resolved.  This may not, however, be feasible or practical for a number of industries. In this instance, an employer and employee could discuss alternatives to see if  there is a viable solution, which may include a combination of options.

Extend holiday period into quarantine period

If an employee is unable to work from home, an employer may ask the employee to take additional paid holiday for all or some of the quarantine period, or return early from Spain to apply some of the booked holiday entitlement towards the quarantine period.

Highlight impact on pay for quarantine period

An employee will be unlikely to qualify for either contractual or statutory sick pay (SSP) if they elect to travel to Spain and this should be highlighted to them.

Even if an employee is in Spain and has been caught unaware by the rule change, an employer has the possible option of refusing to pay the employee during the quarantine period if they cannot work from home, and SSP is unlikely to be available.  An employee may argue, however, that they should receive pay because they are ready and willing to work but are prevented from doing so as a result of a third party. This argument has never been tested in this scenario before and it is unclear whether or not it would be successful.  We recommend advice is sought before deciding whether to withhold pay or not.

Comment 

At the time of writing, the UK Government has not provided any guarantees or assurances for those returning from Spain and having to quarantine.

Pending the introduction of any new rules by the Government, employers and employees would be advised to keep lines of communication open on any travel plans to and from Spain and try to find workable solutions.

For further information, or to discuss the issues raised by this article, please contact Herrington Carmichael’s Employment group on 0118 977 4045 or employment@herrington-carmichael.com

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.