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Coronavirus and employment law – practical advice for employers

Business_Meeting_7 Print publication

13/03/2020

The full effect of the coronavirus on the UK workforce has yet to be seen.  Aside from the adverse impact on business in general, employers face having to ensure that their staff are protected as far as practicably possible, as well as dealing with the clinical impact of the virus on the workforce (sick employees), but also the wider knock-on effect of precautionary measures such as social distancing and self-isolation.  None of this is helped by the ‘fear factor’ which has given rise to panic behaviours such as food stockpiling.

Below, we set out some practical steps for employers and look at some frequently asked questions. Our Employment Team are on standby to help with your queries as and when they arise.

Initial practical steps

Employers have a duty to take steps to ensure the health and safety of their workforce and to ensure a safe system of working and must take the threats posed by coronavirus seriously.  This can be done by adopting the following steps:

  • Keep staff regularly updated on what is being done to reduce risks of exposure and to mitigate the effects of coronavirus in the workplace
  • Check that managers know the symptoms of coronavirus and have a clear understanding of the absence/sickness procedures (including around sickness reporting and sick pay)
  • Think through the steps that would be taken if an employee was confirmed as having the virus including isolation/self isolation and taking advice
  • Ensure there are adequate handwashing facilities with hot water and plentiful soap (and don’t allow the soap to run out!)
  • Encourage staff to wash their hands regularly and put up awareness posters about handwashing, coronavirus symptoms and action
  • Provide hand sanitiser (assuming of course that you can obtain it!) and tissues for staff, and encourage them to use them
  • Consider if protective face masks might help people working in particularly vulnerable situations (this is in line with ACAS current advice)
  • Stay up to date with Government advice and ensure that it is followed. Web links should be provided as the advice is frequently being updated by HM Government
  • Consider options with regards to home-working or agile/remote working. Ensure that your IT is fit for purpose and will facilitate home/agile working
  • Consider what preparatory steps should be taken at this point in the event of a lockdown.  For example, if you don’t have a Home-Working Policy/Agile Working Policy now is a good time to introduce one
  • Ensure that people are treated fairly and vulnerable groups are taken into account
  • Check that all staff (including contractors) contact numbers and emergency contact details are up to date.

Self-isolation and sick pay

The most common queries are around sick pay and self-isolation. Put simply, if the employee can still work from home during a period of self-isolation then they will be entitled to be paid because they are still working.

The Government and ACAS have stated in their official guidance that if NHS 111 or a doctor advises an employee or worker to self-isolate, they should receive any Statutory Sick Pay (SSP) due to them. If the employer offers contractual sick pay, it’s good practice to pay this. Boris Johnson has announced that, in these circumstances, SSP would be payable from day one of sickness but, at the time of writing, this had not been implemented by legislation.

If the employee is not actually sick but the employer has asked them not to come to work because of concerns that they may be affected by coronavirus, they will be entitled to their usual pay.

Absence due to concern about exposure

Some employees may resist attending work because they are worried about exposure to the virus.  Employers should handle such concerns very sensitively but firmly.  For example, if the employee is more vulnerable (e.g. they are over 60, have underlying health conditions or a weakened immune system) then their concerns may well be understandable.  It may be possible to allay their concerns by making some adjustments, for example, to their hours to enable them to travel on public transport out of rush hour or allowing them to work from home on an agile basis.  Alternatively, the employer could allow them to take some time off as holiday.  If no agreement can be reached and the employee insists on not coming to work (and they are not sick) then there is no legal obligation to pay the employee.

Ultimately, if an employee refuses to attend work it could lead to disciplinary action.  However, exercise great caution when dealing with pregnant or otherwise high-risk employees as there is a risk of discrimination claims (pregnancy/pregnancy related/disability claims).   If there is a genuine health and safety risk posed by being required to attend work then disciplinary action might lead to a constructive dismissal or detriment claim. The key is to act reasonably, listen carefully to your employees, follow current government guidance and avoid placing employees at undue risk.

Bear in mind that if there is a vulnerable individual in the workplace (e.g. someone undergoing chemotherapy) it would not be appropriate to tell other staff about this unless the individual wishes the employer to do so as this is obviously sensitive personal data/information.

Employees with caring responsibilities

Employees are entitled to reasonable time off work to help someone who depends on them (a ‘dependant’) in an unexpected event or emergency (such as coronavirus). For example:

  • if they have children they need to look after or arrange childcare for because their school has closed
  • to help their child or another dependant if they’re sick, or need to go into isolation or hospital

There is no statutory right to pay for this time off, but some employers might offer enhanced pay in this scenario. The amount of time off an employee takes to look after someone must be reasonable for the situation. For example, they might need to take 2 days off to start with, and if more time is needed, they can then take it as holiday.  Again a sensible approach needs to be adopted in such circumstances.

Covering sick employees

It is possible that an ‘all hands on deck’ situation may arise where employers need to utilise every resource available and change an employee’s duties or hours to cover for their sick colleagues.

Many contracts of employment give employers an express right to vary duties and hours (although this is always subject to the implied term of trust and confidence so such changes will need to be reasonable under the circumstances).  Employees are also under an implied duty to obey lawful and reasonable instructions which can be helpful in certain situations.  It is important to consult with affected employees before changing hours or duties to avoid the risk of employment claims but clearly and in extremis, virus related absences will provide a powerful business case for changes on a short-term basis.

Further advice

The Government and ACAS guidance for employers is being kept under constant review as the situation develops. This is an incredibly challenging time for employers but rest assured that employment law allows for flexibility and a fair balance between the needs of the business and the interests of staff in unprecedented situations such as this.  More often than not, the key to getting it right is in having solid business reasons for decisions and then in successfully navigating a fair procedure.

Our employment team are here to assist and advise with any queries or concerns that you may have.  Please contact David Smedley, Andrew Rayment or Laura McLellan.

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