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Coronavirus Special

07 April 2020 by Paul McFarlane

With COVID-19 dominating the news, this briefing will focus on a number of the issues employers now face having to manage their workforce through these unprecedented times.

The list below is not a comprehensive one nor should it be treated as legal advice for specific issues employers have.

The World Health Organisation (WHO) has now officially stated that COVID-19 is a ‘pandemic’. Public Health England’s (PHE) website provides guidance to all those potentially affected by the outbreak, including employers, and can be found at the following site: gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19.

Employers ought to regularly check this for the latest government advice on
the pandemic.

At the time of writing (mid-March) the government guidance on COVID-19 had just changed from the ‘containment phase’ to the ‘delay phase’.

The new guidance is: if you have a “new continuous” cough or temperature in excess of 37.8 you should self-isolate for seven days.

Sick Pay

In the budget the government announced measures aimed at assisting employers and employees to get through this crisis, including:

  • all those advised to self-isolate will be entitled to statutory sick pay, even if they have not presented with symptoms
  • they will reimburse small employers (with fewer than 250 employees) any SSP paid for the first 14 days of sickness in relation to COVID-19
  • contributory Employment and Support Allowance (ESA) benefit claimants directly affected by COVID-19 or self-isolating according to government advice will also be able to claim SSP from day one.

It is worth remembering that where there is no contractual right to sick pay, then employees are only entitled to statutory sick pay (SSP). The government decided for the duration of COVID-19 crisis to relax the three-day qualification period before SSP was payable. There remains some confusion about whether this relaxation applies to all illnesses or just those related to COVID-19. Initially it was announced that it would apply to all illnesses, however, in the budget, the chancellor said SSP would be paid “for people who have COVID-19 or have to self isolate, in accordance with government guidelines”. Eligibility for SSP will, however, be extended to:

  • individuals who are unable to work because they have been advised to self-isolate (presumably regardless of whether or not they have symptoms)
  • people caring for those within the same household who display COVID-19 symptoms and have been told to self-isolate.

However, it is unlikely that this will be the case when it comes to contractual sick pay where normally there is a requirement for employee’s to be sick in order to be entitled to it.

ACAS Guidance

Whilst these measures have been broadly welcomed, there remain a number of practical issues which employers are grappling with as the implications of COVID-19 unfold. ACAS have issued their own guidance on COVID-19 at acas.org.uk/coronavirus. Like the PHE guidance it is being continually updated as this situation evolves, so employers are advised to regularly check it. It contains information on some of the practical issues that employers should have in mind, including:

  • self–isolation and sick pay
  • if an employee is not sick but the employer tells them not to come to work
  • if an employee needs time off work to look after someone
  • if an employee does not want to go to work
  • if someone becomes unwell at work
  • if someone with coronavirus comes to work
  • if the employer needs to close the workplace.

Absence Management

Employers may need to consider whether absence(s) due to COVID-19 (actual illness or due to self-isolation) trigger their unsatisfactory attendance sickness absence policy. These policies are drafted to address genuine sick absences therefore employers could treat COVID-19 like any other illness. If the employee were subsequently dismissed following absences due to the COVID-19 crisis, employers risk being subject to a claim for unfair dismissal, where an Employment Tribunal (ET) would have to decide whether this dismissal was fair and within the band of reasonable responses open to it. We are in unchartered waters here so it remains to be seen how ETs would approach this question.

Data Protection

What should an employer do when it is made aware that one of its employees has contracted COVID-19? As an employer you might feel you owe a duty of care to your other employees to inform them about this. However, employers should be very wary about identifying the affected employee. Information about an employee’s health is classified as a ‘special category of personal data’ in the Data Protection Act 2018. It can only be processed by the employer in defined and restricted circumstances. Instead, an employer faced with this situation, can alert other employees about the risk of infection by stating that an unidentified employee has contracted the virus.

Annual Leave

Can an employer compel workers to take paid holidays to facilitate self-isolation? In short, yes. The Working Time Regulations (WTR) gives employers the power to compel a worker to take annual leave. Further, WTR allows employers to force a shutdown (for an isolation period) and compel workers to use their holidays during the shutdown period. However, the employer would be required to give notice of at least twice the length of the period of leave that the workers are being ordered to take.

Homeworking

Can either employers or employees insist on homeworking? For employers this will depend on whether there is a mobility clause in the contract of employment and if so, whether it has been drafted widely enough to include homeworking. Employers may also seek to rely on the implied term that they owe a duty of care to take reasonable steps to protect employees from foreseeable risks, to insist on homeworking during the COVID-19 pandemic.

If there have been actual cases of coronavirus in the workplace, employees could argue that they are in serious and imminent danger by being in the workplace and therefore seek to work from home as an alternative.Similarly where the nature of a disabled employee’s disability makes them more likely to suffer serious effects from the virus, they could request they work from home as a reasonable adjustment.

However, employers are under no obligation to grant requests to work from home from employees because they are worried about an unidentified and non-specific risk. 

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