Employment rights for those returning from Spain

31st July 2020

Following a spike of Covid-19 cases in Spain, anyone returning will now have to self-isolate for 14 days. This may also include other countries in due course. This blog sets out some of the employment rights that employees should be aware of.

Will I receive statutory sick pay (SSP) if I am returning from Spain?

If you are returning from Spain and you have to self-isolate as a result, you will not be entitled to SSP.

Will I be paid as normal?

If you can work from home whilst in quarantine, you should be paid as normal.

What if my job does not enable me to work from home?

If your job does not allow you to work from home, you could consider requesting annual leave. If your employer agrees you will receive full pay whilst you are self-isolating but you will have used up some of your holiday entitlement.

I have used up all my holiday and I cannot work from home so how do I get paid?

As per recent government guidance, the government has encouraged those who cannot receive pay whilst self-isolating, to claim universal credit.

What if I have Covid-19 symptoms?

If you have Covid-19 Symptoms, you should be entitled to SSP.

I am thinking of going to Spain. Can my employer stop me?

Your employer cannot stop you from going to Spain specifically, although employers can prevent you from taking holiday under the Working Time Directions 1998. In order to stop you taking holiday at a specific time your employer must give you at least as much notice as the amount of holiday you planned to take. For example, if you have booked two weeks off work, your employer must give you two weeks’ notice before your holiday starts if they want to cancel your leave. That said, if your employer does not have a good reason for cancelling your holiday then you could consider a claim for constructive dismissal if you have two years’ service or more. This may depend on the commercial reasons for cancelling your holiday, for example, if you do a unique role and you cannot do it from home your employer may be able to justify refusing your holiday if it means you will be out of the business for four weeks instead of two weeks. This will be very fact specific and you should take specific legal advice.

However, ultimately, if you cannot work from home and you travel to Spain you may not be entitled to receive pay from your employer whilst self-isolating.

Can I be dismissed?

If you have less than two years’ service you do not have protection from unfair dismissal and you should talk to your employer before you go on holiday and try to reach an agreement. Those with two or more years’ service are protected and can only be dismissed fairly if the dismissal was by reason of conduct, capability, redundancy, “some other substantial reason” or if it would be illegal to continue to employ you.

It is unlikely that dismissal would be deemed fair if you were already on holiday when this situation arose. If you were on holiday when the new quarantine rules were made then we recommend letting your employer know where you are on holiday, it may be that your employer can find something else for you to do from home on your return with sufficient notice which may enable you to be paid.

If you have not gone on holiday yet, and your employer informs you that you must not go or it will be deemed an act of misconduct there is more of a risk but it will be fact specific. That said, it may be difficult for an employer to show that your actions amount to gross misconduct in most circumstances and action short of dismissal such as a warning or final written warning may be more likely.

This blog amounts to guidance only and should not be considered legal advice. For specific legal advice please contact the Taylor&Emmet Employment team on 0114 218 4000 or email kelly.gibson@tayloremmet.co.uk

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