Following “Freedom Day” on the 19 July 2021, we still have several rules in place when it comes to travelling to and from foreign destinations. These rules are based on a traffic light system of red, amber and green based on, amongst other things, the country or territory’s COVID-19 cases and vaccine roll-out. 

Whilst many commentators say the rules are difficult to follow, we are just thankful the Government went with a traffic light system rather than indicators as these seem to be used sparingly on the roads.

How do the rules work?

For the purposes of this topic, we have only focused on the rules getting back into England in the table below, rather than travelling from England as this is where it is more likely to cause issues for employers. There may be some minor differences for the rest of the UK and so rules on those countries should be consulted.

In light of the above, the rules are relatively simple and depend on where the individual has been in the ten days prior to arriving in England. The individual can then check which countries they have been to against the traffic light list which will dictate what the individual must do before travelling and once they arrive in England.

To assist you in establishing which rules apply to which countries, we have included a link to the government website which has a list of the countries and their designated colour.  However, as we saw earlier in the year, their designation may change and previously green countries could be placed in the amber or even red lists so it is worth checking. 

Depending on the job or medical status of the individual, some exemptions may apply to these rules.

Please note that there are a number of “added extras” to these rules which can be found using the corresponding numbers within the table.

1. The government website states that people should not travel to those countries currently found in the red list. Therefore, the list of people who will be permitted to travel to England, even with the rules, is limited to those who are British or Irish nationals or have residence rights in the UK. These rules apply even if the individual has been fully vaccinated.
2. The individual will need to be able to demonstrate that they have been fully vaccinated, having received their second dose 14 days before arrival in England. This must either be a UK vaccination or a UK approved vaccination scheme.  Those under 18 years old are currently exempt from this provision.
3. Where the result of the test is negative, the individual does not need to quarantine.  However, where it is positive, the individual will need to quarantine either at home or the place that they are staying.
4. These rules also apply if the individual has been to France.
5. These rules apply even if the individual has been fully vaccinated.

The rules do start to get a little complicated when the individual has passed through, stopped at or been in transit in countries that are on the amber or red list. As a rule of thumb, it appears that where an individual passes through a number of countries during the ten days before entering England, the highest set of rules will apply.

How could this affect my business?

If your business employs or engages with individuals then it is likely that some of your workforce will be affected by these rules as they will be applicable when they have travelled abroad either for personal or business purposes. 

If part of your workforce has to quarantine this may interrupt your business operations, whether that is requiring your workforce to come into the office or where the individual is physically required to be present to do their work.

So what should your business be doing?

First and foremost, check what your contracts of employment and holiday policies say regarding holiday. Are they fit for purpose and/or cover some of the scenarios that may arise with the current traffic light system?

It would be beneficial if your policy required your workforce to tell you where they are intending to go when putting in their holiday request. Under normal circumstances this would be abnormal but by doing so, you can at least check their destination(s) against the traffic light system and have a discussion with them to explain the rules that are likely to apply. Those rules should be set out, clearly, in your policy so that your approach is understood and applied consistently.

Another example would be where an individual intends to travel to a ‘red list’ country and cannot work from home. In these circumstances, they will be required to quarantine; they should not be permitted to attend work and if they do turn up to your premises, should be sent home as failure to do so would be a criminal offence. 

If they intend to travel to a red list country and cannot work from home (or abroad) and still travel, despite a reasonable request by you not to do so, then this may result in disciplinary action. 

The position will be greatly alleviated where they can work from home (or wherever they are required to quarantine) as they should do so.

The ‘typical’ situation where an employee is not at work or cannot work is that they are not entitled to be paid. This will be the case where they cannot work from home or attend the offices. However, there may be circumstances which could trigger statutory sick pay (SSP) becoming payable during the quarantine period and so these rules should be checked.

There may be other scenarios where the individual travels to a green list destination which gets placed in the amber or red list which obviously is not the individuals’ fault and so perhaps less draconian methods could apply, such as:

• Offering extra unpaid holiday (though you may wish to avoid setting a precedent for this)
• Allowing the individual to take a longer than usual ‘block’ of holiday
• Offering unpaid leave
• Paying SSP or contractual sick pay, at a higher rate than SSP (though you may wish to avoid setting a precedent for this)
• Utilising a time off in lieu policy
• Allowing them to take “special” (un)paid leave
• Permitting them to work abroad though this may give rise to employment, insurance, tax and/or immigration issues.

The situation that your business finds itself in is likely going to be unique and will turn on its own facts. Therefore, we would recommend that you allow some flexibility but also try to get a thorough understanding of the circumstances of the situation, before jumping to any drastic outcomes. Of course, the absence reporting procedure will play a big role as well.

Get in touch

If you would like to discuss any employment issues, arising from this article, whether that is a review of your holiday/sickness policies, help and guidance on a particular situation or just having a chat, please do not hesitate to speak to a member of the employment team on 01325 466794 and ask for Anthony Willis or Alexander Millward.  Alternatively email: anthonyw@bhplaw.co.uk or alexmillward@bhplaw.co.uk. 

Alexander Millward

The information in this article was accurate at the date it was written (23/07/2021), any changes in Government regulations beyond that date may lead to this data being inaccurate. 

https://www.gov.uk/guidance/red-amber-and-green-list-rules-for-entering-england#green-list-rules