The Coronavirus COVID-19 pandemic has far-reaching consequences for both employers and employees.
Senior Litigator and Employment Lawyer, Marc Turner discusses a few of the issues here.
Email marc@andersonslaw.co.uk to discuss these and any other issues regarding COVID-19 and employment issues.
Employers’
obligations?
Employers
have a legal duty of care to ensure, as far as is reasonably practicable, the
health and safety of their employees and anyone else affected by the business
(e.g. contractors, workers and the public). Risk assessments should be
undertaken, with special consideration to individuals who may be more
vulnerable e.g. those with a disability, young people, the elderly, or pregnant
women. The extent of the measures taken by each organisation may be dictated by
the economic resources available to tackle the present day to day issues
arising from the pandemic.
Action to
be taken by Employers
Staff
should work from home where possible. If your business is one that has been directed
to close by the government then it should do so (e.g. restaurants, pubs,
leisure centres). Encourage employees to be extra-vigilant with hand washing
and using/disposing of tissues etc. Distancing in the office should be
maintained and rotas may be introduced to restrict the numbers of staff in the
office at one time.
Risks to
be considered for staff members:
- Can staff work from home in
order to follow the latest guidance on social distancing? Allow staff to
do so if possible, particularly those in vulnerable groups
- Monitor advice and guidance
from WHO, NHS, government and ACAS
- Consider policies regarding
staff returning from affected areas and whether they should self-isolate
or not.
- Consider particularly
vulnerable staff e.g. pregnant, impaired immunity, those on secondments.
In particular, consider whether any adjustments can be made to working day
for these people so that they do not have to use public transport at peak
times
- Individuals should report to
HR if they have travelled abroad and they should be advised to
self-isolate if they are at risk
- Remember that any health
information is a “special category” of personal data and that individuals
should not be singled out to ask to report or for checks because of their
ethnicity or nationality
- Identify key roles in the
business that would be necessary for continuity purposes
- Review insurance policies
- Apply policies fairly and
reasonably e.g. flexible working and sickness absence.
- Cancel all meetings face to
face where possible and undertake telephone conferences or via social
media platforms
Non-attendance
by an employee and entitlement to pay?
If an
individual does not attend because they are sick with COVID-19 they will be
entitled to sick pay in the usual way (either contractual or statutory where
applicable).If they cannot attend work because of other obligations/responsibilities,
e.g. the school is closed, this should be dealt with in accordance with the
usual firm’s policy for time off for dependents in the first instance. Annual
leave may be taken for longer periods, and there is the right for parental
leave if it is longer (unpaid). Parents struggling with childcare issues can
also be furloughed.
If the
individual is self-isolating on the basis of medical advice from their GP,
Public Health England and/or NHS 111, and because of that isolation is unable
to work, then the government has confirmed that the employee will be entitled
to statutory sick pay (SSP). This is a temporary measure and will expire on 12
November 2020.
The
government has confirmed in the Budget that SSP would be payable from the first
day of absence (instead of day 4) and that it would reimburse employers with no
more than 250 employees up to 14 days SSP. SSP is currently £95.85 from 1 April
2020. These Regulations have not yet been published and the government has yet
to confirm how and when these refunds will be administered. If the individual
is shielding then they can be furloughed.
If you
pay your staff SSP, there is a risk that an individual who has been told to self-isolate
will still go to work to avoid the decrease in pay. It is therefore at your
discretion as to whether you pay them above and beyond SSP, for example, full
or half salary.
In order
to decide on the best course of action, you will need to act in accordance with
your Staff Handbook and/or Sickness and Annual Leave policies. If you wish to
amend your policies, you should notify your staff in advance. You may not
unilaterally change the terms of employment of an employee and care should be
taken to obtain the agreement of any employee if you are to alter their
contract, even if only upon a temporary basis.
If your
policy is not to pay people but individuals come into work anyway, then to
compel them to isolate would likely require full pay, because there is an
implied right to wages if the individuals are able to work (despite being sent
home by their employer). Having a policy that sets out clearly that holiday
will be required to be taken, for example, could avoid these issues.
If the
individual is not at work but it has been agreed they can utilise flexible
working policies to work from home whilst self-isolating or caring for their
children, for example, they should be paid as normal.
Employees
wish to Return to Work
Employees
may express a genuine concern about catching coronavirus and consequently be unwilling
to attend work. If this is the case you should listen carefully to the concerns
of your employees and, if possible, offer flexible working arrangements. Staff
should be allowed to work from home where possible.
Employees
can also request time off as holiday or unpaid leave but there is no obligation
on employers to agree to this. If an employee refuses to go to work without due
cause, you are entitled to take disciplinary action.
Reduced
staff requirements due to COVID-19
The needs
of the business should be considered on a case by case basis. It is possible to
direct staff to take their annual leave at a designated point which may cover
some of the problems, although care must be taken to provide the correct
notices as required under the Working Time Regulations 1998.
Staff may
have short-time working or lay-off provisions in their contracts that can be
utilised, although be mindful of the ability of staff to request redundancy
payments after a prolonged period of lay off.
You may
also wish to make use of the Government’s Coronavirus Job Retention Scheme
(“furlough scheme”) and you can find
more information about that scheme from the government website.
Furloughing staff involves a temporary variation to contract and you should
seek advice on this.
Temporary
variations to contract might be possible to agree with the workforce, and, in
extreme cases, redundancies may be required. If the company envisages making 20
or more people redundant in a 90day period, the collective procedure will come
into force.
Other
resources:
- The government
publishes daily updates with the latest COVID-19 updates and
advice.
- Acas: Guidance for employers and
employees from Acas, the Advisory, Conciliation and Arbitration Service,
an independent body funded by the Government.
- NHS: Health-related guidance
from the National Health Service.
- Public Health England including, eg, specific guidance for
employers, educational and health-related organisations, and an option to
receive updates directly.