18 March 2020
In February's Law at Work article "Coronavirus: what employers need to know", we outlined employers' obligations towards their employees with the spread of coronavirus (COVID-19), and actions they should consider taking. The virus continues to spread across the world.
At the time of writing the UK Government has announced a number of wide ranging measures affecting individuals and society across the UK. Of assistance to employers and their staff it has published Covid 19 Guidance for employees, employers and businesses, which is regularly updated. ACAS has also published advice. The Government is also legislating to address the possible consequences of widespread impact of the virus across the UK
We explore the implications for employers and their staff of this guidance, the duties that employers have towards their employees and workers, and answer some of the common questions which employers are asking about the potential impact of the virus on their organisations and their people.
Employers have a duty of care to protect the health, safety and welfare at work of their workforce, as well as others who may be affected by their operations such as contractors and the public so far as is reasonably practicable. This would include taking reasonable steps to control the possible spread of the coronavirus at sites under their control, and ensuring that any control measures are consistent with the government's advice. For those employers, with staff in the workplace, practical measures would include:
The Government is advising those who are at increased risk of severe illness from coronavirus (COVID-19) to be particularly stringent in following social distancing measures. This group includes those who are:
Government guidance for those aged 70 or older, under 70 with an underlying health condition or who are pregnant is to undertake "social distancing measures". These include:
The Government has published guidance on when this should occur. In addition to those who have returned from the regions specified above, Currently the advice is that:
New Statutory Sick Pay (SSP) regulations have come into force
From 12 March, the definition of ‘persons deemed incapable of work’ for the purpose of SSP pay entitlement now includes a person who is self-isolating so as to prevent infection from coronavirus in accordance with guidance published by Public Health England or NHS Wales or Scotland and by reason of that isolation is unable to work. We examine how this might apply in various scenarios below.
ACAS guidance now states that employees and workers must receive any SSP due to them if they need to self-isolate because:
If someone has symptoms, everyone in their household must self-isolate for 14 days. Those who live alone must self-isolate for 7 days.
Individual is ill with coronavirus
If an individual is ill with the coronavirus, then they should be paid in accordance with their employer's usual sickness absence and pay arrangements. Normally employees and workers taking time off work due to illness are able to claim up to £94.25 per week (currently) for up to 28 weeks, but only once they have been away from work for more than four consecutive days (including non-working ones). The Government has now indicated that SSP will be made available from the first day of absence when self-isolating for a coronavirus-related absence instead and that it will reimburse small employers with fewer than 250 employees any SSP they pay to employees, for the first 14 days of sickness due to coronavirus. However at the time of writing these changes have not come into force.
Individual goes into self-isolation due to medical advice
Where NHS 111 or a doctor advises an employee or worker to self-isolate, or the individual is self-isolating for 7 days to comply with Government guidance on when they should self-isolate they should receive any SSP due to them (whether or not they are actually sick).
However, if they are not actually unwell, then an employer is probably not obliged to pay contractual sick pay because the employee is unlikely to satisfy the terms of an organisation's sickness policy. In this situation, both Acas and the CIPD recommend that it would be good practice for employers to pay contractual sick pay do so in this situation. This would encourage the employee to follow advice to self-isolate and not attempt to return to work due to concerns about not being paid. But it is not legally required.
In both cases employees should let their employer know as soon as possible if they're not able to work, the reason and how long they're likely to be off for.
If an employee is not sick but the employer tells them not to come to work, or work from home
If an employee is not sick but their employer tells them to self-isolate and not to attend work, perhaps due to the employer taking a more cautious approach, ACAS guidance states that they should get their usual pay because they are complying with an employer's lawful and reasonable instructions. Employers may also be asking employees to work from home. This should be paid in the usual way. Another option, depending on the employment contract, might be to impose lay-off or short time working provisions (see below).
If an employee needs time off work to look after someone e.g. due to school closures, others in self-isolation
We have already had instances of schools in the UK being closed for coronavirus related reasons and the media have reported widespread closures in Italy and elsewhere. Many individuals have been placed in self-isolation, and in the coming weeks dependants (both old and young) may need looking after if they are not in school, or if they fall sick, or their carers do. Employees are entitled to time off work to help someone who depends on them in an unexpected event or emergency. There's no statutory right to pay for this time off, but some employers might offer pay depending on the contract or workplace policy. The amount of time off an employee takes to look after someone must be reasonable for the situation. For example, they might take 2 days off to start with, and if more time is needed, they can book holiday, or take unpaid parental leave (of up to 4 weeks per year per child). Alternatively, an employee may ask to work from home. Whether an employer agrees to such arrangements will depend on their role and the nature of their caring responsibilities at home.
The level of pay an individual receives is likely to have an impact on any pay related benefits they are entitled to - for example, pay-related pension contributions, though particular terms may apply in relation to any period of absence or sickness. Specialist advice should be taken about the correct treatment of these benefits in these circumstances.
Businesses that are experiencing a downturn in business as a result of the coronavirus may seek to reduce their staff numbers, or the hours that they work. As a temporary solution to no or less work, while an employer waits for an upturn in work, it may have the right to "lay off" staff where employees' employment contracts or collective agreements contain such terms. These provide employers with a contractual right to send people home (for no pay) for a short period of time, usually as a way of avoiding redundancies. They may be entitled to a statutory guarantee payment from the employer. Alternatively and where there is an express or implied contractual right to do so, an employer may have the right to put employees on "short–time" working.
But relying on these provisions requires careful handling and we recommend employers have specific advice on how to carry out such a course of action.
If any employees affected are sponsored visa holders any decision to lay them off or require short-time working will need to be reported to the Home Office within 10 working days and may affect their visa status.
Employers should regularly check the UK Foreign and Commonwealth Office (FCO) travel advice. In response to coronavirus measures it is now advising British people against all non-essential travel worldwide. This advice took effect from 17 March and applies initially for a period of 30 days. Business meetings therefore with those located abroad should be conducted remotely via Skype or similar.
Employers should also, if necessary, remind staff of Government guidance, in relation to personal travel too. Specific advice should be taken in such circumstances to ensure that employees could not claim breach of contract or constructive unfair dismissal.
Consider both the data privacy rights of the individual as personal medical information is sensitive personal data, and the health and safety obligations which the employer has towards all its employees. Before notifying other members of staff, consider whether the express consent of the affected person should first be sought. If this is not given then it may still be necessary to notify other staff, albeit on an anonymous basis. How this information is shared will depend on the size and nature of the workforce. Employees will expect transparency from the employer, and procedures to be put in place to protect them from possible infection. Information sharing is part of this. On a practical level, such news may well leak out at some point anyway.
Sponsored visa holding employees may be impacted by restrictions on travel which affect their residence in the UK or closure of Home Office visa sites which prevent them from extending their visa. The Home Office has a coronavirus information helpline to give advice to employers and visa holders. As each visa holder's situation is unique employers should take specific advice on how to support them.
Independent contractors are not entitled to receive sick pay, so may be less likely to self-isolate if they have come into contact with high-risk persons for fear of losing income. Organisations should ensure that contractors who visit their premises are aware of good hygiene practices which have been put in place and other health and safety measures.
Complying with health duties towards contractors will not change their status towards being "workers" or "employees". But paying them company sick pay might, so take advice if you wish to do this even if the Government enables SSP to be provided for contractors.
If businesses no longer require the services of independent contractors, perhaps due to a slowdown in business, they should follow the usual termination provisions in their contracts of engagement.
It was recently reported in the media that some British Chinese people had suffered racist abuse linked to COVID-19. If such treatment took place at work, this would be a disciplinary matter for an individual employee but employers can also be liable for harassment or discrimination by their employees towards other employees, unless they have taken reasonable steps to prevent such conduct. This would include having equalities policies in place, giving appropriate training on those policies and making sure that inappropriate behaviour is dealt with effectively.
In line with the ACAS advice it is good practice for employers to:
In addition employers should consider other measures to adopt now in preparation if further action is required such as:
Given the widespread media coverage, communication with staff is also important, explaining what they are doing to protect staff against the risk of infection and how employees can protect themselves too. Employers' approach to the payment of sick pay, or normal pay, or to those who are prevented from working will be remembered, either positively or negatively.
The situation in the UK is changing regularly. Organisations should ensure that they regularly check the government's guidance for employers and businesses, the ACAS guidance for employers to help protect the health and safety of their employees, and from Public Health England.
by multiple authors