Do employers need to pay employees who have to legally quarantine following a holiday abroad, according to COVID-19 regulations?
What is the law around COVID-19 quarantine?
Since 8 June 2020, what you must do when you arrive in England from abroad depends on where you have been in the 10 days before your arrival. The Government has created a red, amber and green list of countries based on Covid-related risk and the countries in each category may change over time as risk changes. If you have been in or through an amber or red list country you will need to quarantine on your return for 10 days.
If an employee cannot work during this quarantine period, are they entitled to be paid?
The law is not entirely clear on this point but we think in most cases the employee will not be entitled to be paid. There are certain implied duties in every employment relationship. This includes the duty on an employer to provide work and the duty on the employee to do the work. Arguably, where the employee is not able to work, the implied right to be paid will not apply.
However, there is case law which could create an alternative argument. For example, in North West Anglia NHS Foundation Trust v Gregg  EWCA Civ 387 (19 March 2019) the Court of Appeal held that, if the employee is ready and willing, and the inability to work is the result of a third-party decision or external constraint, any deduction may be unlawful depending on the circumstances. However, this was a case regarding pay during suspension and it could be a stretch to apply this principle to the Covid-19 situation around quarantining. Suspension by an employer pending an investigation or decision is very different to when an employee takes a personal decision to go away on annual leave to somewhere which will or may impact their ability to return to work. In the former, the employee has had the decision forced upon them. In the latter, the employee is in control of the decision to go away and the likely consequences of it; albeit once they have done so there is a legal restriction on their ability to return to work.
Advice for employers
Employers who have staff who cannot work from home or are concerned about disruption would be well advised to make sure staff are aware they must tell their employer if their attendance at work could be impacted on their return from annual leave due to the legal requirement to quarantine. A discussion can then take place with any employees impacted on their potential plans.
Employees who go away knowing they will need to quarantine on their return and without telling their employers could potentially face disciplinary action or dismissal on their return. Whether disciplinary action or dismissal is reasonable depends on the facts of the situation. Employers and employment tribunals are likely to have far more sympathy with employees who have tried their best to prepare for a quarantine situation whether that by booking annual leave or requesting unpaid leave.