At the moment the news bulletins and papers are full of reports about coronavirus, and what it means for all of us.
The impact of the global outbreak of coronavirus (COVID-19) on the UK is still uncertain. It’s certainly become a source of concern and confusion for many employers and employees. Information-sharing and business preparation steps are now advisable.
Employers have a duty under health and safety legislation to take reasonable care for the health and safety of their staff; and employees owe each other a similar duty. Employers also have particularly relevant responsibilities to staff with disabilities (such as those who are immunosuppressed) and to pregnant women. Those whose partners, spouses, cohabitees or regular contacts are in high risk groups may also have particular concern about risk of transmission of infection that might not be immediately apparent.
Businesses are already being affected by event cancellations and international supply chain shortages and it is possible there will be business interruption, and turnover and cashflow challenges. It is also no surprise that there are now questions about employee rights and responsibilities, including self-isolation and pay. It is important that employers establish a framework for their response that is consistent and thought-through, for legal and business continuity reasons. The short form guidance below is intended to help you navigate through all of this. However, it is not comprehensive or to be applied in every situation, and advice should be sought if you are in any doubt about how you should respond.
Government advice details how to help prevent the spread of COVID-19, what to do if someone with suspected or confirmed COVID-19 has been in a workplace setting, what advice to give to individuals who have travelled to specific areas, as outlined by the Chief Medical Officer and advice for the certification of absence from work resulting from COVID-19.
There have been fatalities reported associated with COVID-19, and it appears that in general more severe symptoms are experienced by people with weakened immune systems, older people, and those with long-term conditions like diabetes, cancer and chronic lung disease. Particular attention should also be paid to the protection of pregnant women.
What can employers consider doing?
Decide whether staff can work from home to avoid infection or transmission and if so, make plans for enhanced remote IT access, use of mobile phones and personal numbers and devices (if appropriate). Home-working policies, Bring Your Own Device, data protection and information security should be considered.
Implement hygiene measures such as hand washing, no-handshake and sanitiser advice in the workplace.
Develop and deploy a pandemic business continuity plan.
Issue travel advisory notices and updates to staff.
Identify and be aware of groups at higher risk of more serious symptoms, such as those with impaired immune systems and pregnant women.
Look out for and intervene if there is any workplace harassment or other race or national origin discrimination against any hotspot groups, such as Chinese or Italian staff.
If employees refuse to attend work, it would probably be unfair to dismiss them if they have a genuine fear of transmission or infection. However, as they are not sick, they would not be entitled to SSP or any contractual sick pay.
If an employee reasonably believes that there is a serious and imminent danger to their health and safety, and they refuse to attend work, it would be automatically unfair to dismiss them for non-attendance, regardless of length of service, under s.100 Employment Rights Act 1996.
If employees self-isolate, they are not off sick and are not legally entitled to be paid, but consideration should be given to allowing them to take the time as holiday or sick leave (for contractual sick pay considerations), not least to ensure that they are not tempted to attend work.
If employees are isolated on a mandatory basis but not by their employer, they are also not entitled to be paid, but payment of sick pay or holiday payment options should be considered.
If employees are suspended from work, perhaps because they have been to an affected area and are considered a health risk but don’t self-isolate first but they have presented themselves as fit and well to work, they are entitled to normal pay and benefits under ‘medical suspension’.
Some employees (and workers who are not entitled as employees) may be tempted to present themselves as fit and well to work in circumstances where self-isolation is appropriate, such as where they have had potential exposure or suspect symptoms. This presentation for work should be expected and not attract criticism, unless a worker disobeys a management instruction not to attend the workplace or they fail to follow other notified anti-infection measures.
Employees are entitled to SSP (and any contractual company sick pay) if they are diagnosed and sick with coronavirus, or are otherwise too unwell to work and are certified as sick and also comply with the company sickness absence reporting procedure. There is the possibility of a special entitlement being put in place by the government for SSP if an employee self-isolates, but at the time of writing this is only at the planning stage and it may or may not be enacted.
It may also be that there is adverse impact on orders or trade from related shutdowns and travel restrictions, to the extent that there is not enough work for staff to do. If they have an express or implied contractual right to “lay-off”, provided that the correct procedure and rules are followed, staff can be required not to work and not be paid.
If an employer lays off an employee or puts them on short-time working in the absence of an express or implied contractual right to do so, the employer may be in fundamental breach of contract, entitling the employee to resign and claim constructive dismissal.
Where the employer lays employees off or puts them on short-time working, without the contractual right to do so, an employee’s options are:
• Choose to accept the breach of contract and treat the contract as continuing, while claiming a statutory guarantee payment.
• Sue for damages for breach of contract in the civil court or, in certain circumstances, at an employment tribunal.
• Claim before an employment tribunal that there has been an unlawful deduction of wages.
• Claim that the employer’s action amounted to a dismissal (constructive or otherwise), giving rise to potential claims for unfair dismissal and/or redundancy pay.
If the employee decides to resign and claim constructive dismissal and the reason for dismissal is redundancy (which is probable in this situation), the employee may also claim a statutory redundancy payment.
It is an option to consult with and terminate the employment of staff by reason of redundancy, with payment of statutory redundancy pay, notice pay and pay in lieu of untaken holiday.
Business continuity planning
For many businesses, business continuity, disaster recovery or serious incident planning is mandatory with some insurers, customers, government bodies, regulators and accreditations. Consideration should be given to drawing up a plan even if you don’t have to. Thinking through the issues and planning in advance will give more time to take care of IT, HR and finance challenges.
Duty to protect the health and safety of employees
Detailed steps to meet health and safety obligations should include:
• a structured system or means to keep abreast of government advice as it develops.
• reliable and effective systems for communicating with employees.
• update contact data (email, telephone, personal telephone and address, emergency contact details).
• plan for alternative communication methods, such as personal telephone.
• ensure that there is good hygiene in the workplace.
• encourage staff to regularly wash their hands with soap, to carry and use tissues and sanitising hand gel.
• provide training or communications to all staff about precautions and advice.
• carry out a risk assessment to identify any higher risk groups, such as those who have a high level of contact with each other or are at heightened risk of adverse reaction to infection.
• suspend normal requirement to return to work immediately after sick leave.
• ban or minimise travel to high-risk areas (and particularly where the UK government or a relevant foreign government has advised against this travel).
• check whether staff travel insurance will still provide cover for medical repatriation.
This note is provided as general guidance and is not intended to replace specific legal advice, which would need to take into account factors such as employee disability, the nature of business activities and priorities, employment contracts, policies procedures and any new laws that are passed in the meantime.
We are not medical experts and employers should refer to Government advice and update themselves regularly: https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/
The relevant ACAS guidance should also be considered, as it will be of practical assistance but might also be referred to if a legal dispute arises: https://www.acas.org.uk/coronavirus
If advice is required, please contact us for further information.
Picture (C) NIAID-RML