Comment and insight from our employment law team.
COVID-19 or "coronavirus": employment considerations
- AuthorShola Khan
Published 5 March 2020
Further to our blog yesterday, there has already been up update: sick pay for self-isolating workers.
Workers will now receive statutory sick pay from their first day off work as opposed to the previous rules, which saw them having sick pay from their fourth day off. The change has been brought in as a temporary measure to respond to the coronavirus update, but will lapse when it is no longer required.
Prime Minister, Boris Johnson, has said “No one should be penalised for doing the right thing”.
Labour leader, Jeremy Corbyn, has also called for help for those not currently eligible for sick pay, for example, workers on zero-hour contracts and self-employed people, but there is no official update on this as of yet. Currently, these workers may see if they are eligible for help through other supports, such as Universal Credit and contributory Employment and Support Allowance.
Keep an eye out for further updates.
Published 4 March 2020
Following the Prime Minister’s statement at the coronavirus press conference yesterday (3 March 2020) and the publication of the ‘Coronavirus: action plan’, there has been much talk about the risks of coronavirus to employees and employers, and what can be done to mitigate the potential risks of disruption to businesses.
Employers have a duty of care to their employees to protect their health and safety. This blog will consider options available to employers in the event that coronavirus impacts their business.
Good practice for employers
ACAS have published a good practice advice note for employers. They suggest that employers should:
- keep everyone updated on actions being taken to reduce risks of exposure in the workplace;
- make sure everyone's contact numbers and emergency contact details are up to date;
- make sure managers know how to spot symptoms of coronavirus and are clear on any relevant processes, for example sickness reporting and sick pay, and procedures in case someone in the workplace develops the virus;
- make sure there are clean places to wash hands with hot water and soap, and encourage everyone to wash their hands regularly;
- provide hand sanitiser and tissues for staff, and encourage them to use them;
- consider if protective face masks might help for people working in particularly vulnerable situations, and
- consider if any planned travel to affected areas is essential.
If an employee becomes unwell at work and has recently come back from an area affected by coronavirus or been in contact with someone who has coronavirus, they should:
- stay at least two metres (seven feet) away from other people;
- go to a room or area behind a closed door, such as a sick bay or staff office;
- avoid touching anything;
- cough or sneeze into a tissue and put it in a separate bin, or if they do not have tissues, cough and sneeze into the crook of their elbow; and
- use a separate bathroom from others, if possible.
They should also call 111 for NHS advice, or 999 for serious health risks.
In obvious cases of exposure, the Government has advised that those at risk should self-isolate for 14 days.
Absence for employees told not to come to work
What happens if an employee returns from an affected area or has been around someone who has been diagnosed with coronavirus?
Daniel Barnett (employment law barrister) has advised: “There is no legal right to sick pay in these circumstances, but it would be good practice. Otherwise you run the risk of them coming into work and potentially spreading the virus to the rest of the workforce. There is also a risk of an argument that - by choosing not to pay someone who has self-isolated - you have breached the implied term of trust and confidence and hence constructively dismissed them. But I think such an argument is weak, for all sorts of reasons”.
The Government have suggested that SSP might be available in these circumstances. Further confirmation is awaited.
Absence for dependants
If an employee needs to take time off to look after a dependant who has contracted coronavirus, they are entitled to take the time off. This may include time off to arrange childcare for their child because their school has closed or time off to take their child to isolation. However, there is no statutory right for this time off to be paid although some employers might offer pay depending on their contract/workplace policy. The length of absence must be reasonable for the situation.
Absence for employees who do not want to go to work
Some employees may feel that they do not want to go to work through fear of coronavirus. Employers need to ensure that they listen to any employee concerns and if there are genuine concerns, try and resolve them. It is important that employers try to protect the health and safety of their staff and consider alternative ways of working, i.e. working from home or flexible working.
If no agreement can be reached and an employee fails to attend work, disciplinary action may be considered by the employer.
In situations where an employee is abroad and on authorised leave, their usual contractual rights will apply in relation to their pay. Issues may arise where the employee subsequently becomes stuck in the country they have visited and, as it is likely that employers will not have existing policies for these circumstances, each incident will need to be approached separately. It is important to ensure that there is a consistency in the approach to ensure that employers avoid any discriminatory or unfair claims.
If the employee is able to work remotely in the country they are in, and the employer is happy for them to do so, it is likely that they will continue to be paid. However, this is dependent on the employer’s approach to flexible working. If employers have guidance on this in place, they should ensure that this guidance is available to employees.
Employees should note that if they are unable to work abroad, they are not entitled to pay (subject to any contractual rights they have) but they may be offered the option of taking further annual leave or unpaid leave.
Closing the workplace
At present, it is unlikely that employers will need to close their workplace. However, as coronavirus develops, employers should ensure that they have a plan in place in the event that they do need to close temporarily. This could include procedures to ensure that staff can work from home i.e. on laptops and mobile phones.
If an employer closes its business, unless it is agreed otherwise or there are contractual terms, employees should still be paid. If the closure is because of a downturn in work, the lay-off or short-term working arrangements may become applicable, in which case staff will be entitled to at least guarantee pay of up to £29 per day for five days in any three-month period. Contractual benefits may be higher.
Risk of discrimination
Employers need to ensure that all decisions and protocols in place for coronavirus are fair and do not discriminate against anyone with protected characteristics. Employers should be aware that discriminatory treatment is unlawful, and they should ensure that they take necessary steps to avoid this. Check equality and diversity policies as relevant.
- GMB Union has called on the Government to ensure that all workers get full sick pay if affected in any way by the coronavirus situation. Nadine Houghton, GMB National Officer, said: “Leaving low paid workers with the choice of either losing their wages or coming into work despite suspected COVID-19 infections is a serious public health crisis”. At the time of writing, there is no update on this from the Government.
- ACAS have published advice for employers and employees outlining simple steps to protect the health and safety of staff. It is likely that the Government will continue to issue guidance as the situation develops.
As the situation is ever changing, it is always best to check for any updates on the current guidance.
If you would like to discuss the issues raised in this article, please contact a member of our Employment team.