As part of strict measures introduced earlier this year to prevent the spread of COVID-19 in the Bailiwick of Guernsey, any person arriving in the Bailiwick by air or by sea is required by law to self-isolate for 14 days. Following collaboration between local industry and government, agreement was reached to vary these measures to allow same day travel to and from Guernsey from 21 July 2020. In this article we look at the concept and requirements of 'Business Tunnel' meetings, the notification process, and implications for Guernsey employers where a locally based employee objects to attending a Business Tunnel meeting.
What are Business Tunnels?
As part of strict measures introduced in the Bailiwick of Guernsey to prevent the spread of COVID-19, any person arriving in the Bailiwick by air or by sea since March 2020 is required by law to self-isolate for 14 days. Following collaboration between local industry and government, agreement was reached to vary these measures to allow 'One Day Business Travel' (a 'Business Tunnel Variation') from 21 July 2020.
The Business Tunnel Variation allows travel to and from Guernsey from outside the Bailiwick on the same day, by air, for a purpose related to the conduct of business without the requirement to self-isolate for 14 days. 'Conduct of business' for these purposes includes attending meetings with representatives of a GFSC regulated or administered businesses solely or primarily for regulatory or compliance purposes, any activity associated with establishing a new business in Guernsey, and any activity associated with buying or renting a property in Guernsey.
In order to benefit from a Business Tunnel Variation, anyone travelling to the Bailiwick on business (a "Business Traveller") will be have to comply with specific legal variation requirements (the "Requirements") issued by Guernsey's Civil Contingencies Authority under the Emergency Powers Regulations Business Tunnels - Legal variation and Guidance issued by Guernsey Public Health Business Tunnels - Method Statement and Public Health Guidance.
A Business Traveller who fails to comply with the Requirements may be liable to prosecution and their Business Tunnel Variation will lapse.
The Business Traveller's employer may be liable to prosecution if the Business Traveller fails to comply with any of the Requirements, including where the employer requires or requests a Business Traveller to act in the course of his / her employment in a way which constitutes a breach of the Requirements.
What are the requirements?
What follows is a summary of the Requirements. For full detail refer to Business Tunnels - Legal variation and Business Tunnels - Method Statement and Public Health Guidance
- A person proposing to travel to Guernsey as a Business Traveller must not do so if they are feeling unwell, have been diagnosed with COVID 19, or cared for someone with COVID 19 within the last 14 days.
- Travel must be same day return, by air. Travel can be by private or charter flight or by scheduled flight with the States owned airline, Aurigny. From 6 August, day returns for Business Tunnel meetings will be operated from Jersey by Blue Islands.
- The Business Traveller must provide any information required by the relevant authorities in connection with the variation before travel to Guernsey, on arrival, while in Guernsey, or on departure.
- Business may only be conducted in a designated meeting room at airport hangars, or in an office building or other business building, and the Business Traveller must not go elsewhere during the visit.
- The Business Traveller must have regard to the Public Health Guidance for those organising meetings which they are attending (this guidance is set out at Schedule 3 of the legal requirements - Business Tunnels - Legal Variation).
- The number of contacts made by the Business Traveller during their visit to Guernsey must be kept to the minimum necessary to achieve the business purpose.
Travel to and from a meeting
- The Business Traveller must use private transport (private car or taxi) to and from the meeting from Guernsey's airport terminal, not public transport. Specific requirements around social distancing, passenger limitations, use of face masks, ventilation in the vehicle and physical contact are set out in Business Tunnels - Legal Variation.
The venue for the meeting
- The onus is on those applying for a Business Tunnel Variation to organise an appropriate venue for the meeting.
- Any business meeting must be held in a well ventilated office (windows should be open or the air conditioning used should be compliant with regulations issued by the Federation of European Heating, Ventilation and Air Conditioning Association in the COVID 19 context). Meetings in public places (restaurants, bars etc) are not permitted.
- The Business Traveller should be allocated a separate toilet and separate refreshment / meal area or table. They should not have access to other areas of the building.
- Where travel is organised through a private or charter flight, a face to face socially distanced meeting can take place in meeting facilities operated by Aiglle Flight Support or ASG Pula Aviation Services at Guernsey airport. As with meetings held elsewhere in Guernsey, it will be necessary to record the names of those attending the meeting, observe social distancing and implement appropriate hygiene precautions.
After the meeting
- The meeting location (including toilets) should be aired and left untouched for two hours before being deep cleaned in accordance with Public Health Guidance.
- Waste should be double bagged and "quarantined" for 72 hours before being left for collection.
- The Business Traveller must ensure a record is made and kept for 14 days of the name of each person they come into contact with for contact tracing purposes (including the driver of any private car or taxi).
- Contingency plans must be put in place, including access to a healthcare provider and accommodation, in the event a Business Traveller develops symptoms or becomes ill during the flight or whilst in Guernsey, or as a result of a delayed return flight due to weather or technical problems.
A Business Traveller who wants to benefit from the Business Tunnel Variation must give at least seven days' advance notice to the States of Guernsey Population Management Office by completing a designated online form available online at www.gov.gg/covid19businesstunnel.
It is a legal requirement to provide this information before travel and a failure to do so will result in the Business Traveller being instructed to self-isolate for 14 days on arrival in Guernsey.
The Population Management Office may advise, on the basis of the information provided, that the business meeting does not qualify for a Business Tunnel Variation. In these circumstances, if the Business Traveller still decides to travel to the Bailiwick, they will have to self-isolate immediately on arrival for 14 days.
Dealing with objections
Whilst the Business Tunnel Variation now permits business meetings to be held subject to appropriate health and safety measures being put in place, what if a locally based employee objects to attending a meeting with a Business Traveller due to concerns about contracting COVID-19?
Although employees are legally bound by an implied term in their employment contract to obey their employer's lawful and reasonable instructions, this obligation may be limited by the mutual obligation of trust and confidence. This obligation means, insofar as it applies to the employer, that it must not, unless it has 'reasonable and proper' cause to do so, conduct itself in a way which is calculated or likely to destroy or seriously damage the trust and confidence between itself and its employee. An employee could argue that a requirement to attend a Business Tunnel meeting exposes them to an unnecessary risk of contracting COVID-19 and is therefore a prospective breach of the employer's duty of trust and confidence.
In addition, an employee could point to the statutory provision which gives them automatic protection from dismissal where they bring to their employer's attention circumstances connected with their work which they reasonably believe are harmful or potentially harmful to health or safety, in this case the requirement to attend a meeting where there is the risk of contracting the virus.
Where the Business Tunnel meeting is for one of the purposes envisaged in the Requirements (see above) and the employer follows Public Health Guidance and works closely with the Business Traveller to ensure the Requirements are observed, it will have acted reasonably and with proper cause. In these circumstances legal action by the employee is unlikely to be successful.
However, in the current circumstances, where there continues to be a high degree of nervousness following a period of unparalleled disruption at work, employers would be well advised to try to address concerns by exploring the employee's reluctance with them and explaining the protective measures that have been put in place rather than insist that an employee attend a meeting without further explanation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.