The Spanish quarantine issue is fast becoming the hot topic in the business world and in education, for employment law practitioners and HR professionals.

I’ve taken numerous calls this week requesting advice from businesses and the education sector who frankly have no idea how to deal with their staff who are either in Spain now or who have booked to go to Spain later in the summer, and who now have to quarantine on their return for 14 nights.

The concern for teachers and schools will be for any staff who are in Spain and were planning to spend the summer there; or have booked to go next month. They are entitled by law to take holidays and if they insist on doing so, where does this leave schools in September?

There is clearly concern around a second wave of the pandemic. However, the government have not pragmatically thought through the impact on employees and employers, nor on the impact on schools and parents and neither have they provided any guidance to assist.

Previously, those advised to isolate for medical reasons by the government could be classed as being on sick leave and would receive statutory sick pay as a result. However, this hasn’t been confirmed as being the case in relation to quarantine following a holiday to Spain.

So – what options do employers have where their employees are insistent on continuing with their foreign holiday plans? They are stuck between a rock and a hard place.

Option one – insist their employees cancel any holidays planned to Spain?

This feels morally wrong for employees who may now more than ever feel like they need a holiday. Also, question whether them being forced to do so could amount to a fundamental breach of contract which could entitle an employee to resign and claim constructive dismissal, if they have over 2 years’ service. If the employer offers financial compensation for missed holidays that could soften the blow but could still potentially be risky.

Option two – allow employees to go on holiday as planned and deal with the 14 day quarantine issue?

But how do they deal with pay? Allow them to take the time as holiday entitlement, pay them in full, or insist the 14 days are taken as unpaid leave? Again, the employer is stuck between a rock and a hard place as not only may the business be unable to cope with work demands with staff at home quarantining, who cannot carry out their job from home, but there are likely to be complaints from staff who have their pay cut as a result of the quarantine.

Employment law in England & Wales uses ‘reasonableness’ as a measure of fairness and legality and I would suggest that where employees can work from home ideally employers should allow their staff to holiday in Spain and to work from home on full pay during the 14-day quarantine.

But – how can this work for the education sector, and is this possible?

Some schools have used video calls to deliver lessons during lockdown, but many haven’t.

Should the government be planning ahead now to facilitate and encourage video call teaching to avoid a situation where teachers may be quarantined in September?

The business world has embraced video calls as a means of meeting people, training and delivering workshops – arguably it has had to.

If we face a situation in September where there are staff issues in school caused by teachers quarantining, questions will have to be asked about the government’s foresight in proper planning and their ability to support the sector and the education of our children by utilising technology and embracing modern methods of teaching.

(This article originally appeared in the Times Educational Supplement in August 2020)