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The position on Coronavirus is ever changing, often on a daily basis. Also, given the fact that so much of this is unknown and unprecedented, it is difficult to say with any clarity what the employment law landscape is going to look like within the next few days and weeks.
We do not know how Employment Tribunals will treat employees who are subject to a detriment because of Coronavirus although we suspect this will be with a large degree of sympathy and understanding.
We also do not know what emergency legislation the Government may pass in order to provide more protection to employees during such a difficult time. Therefore, our overriding advice is that whilst all this is being worked out, employees who are affected in any way by Coronavirus must be dealt with delicately and sensitively, in a similar way as you would treat someone who is disabled or pregnant.
We are happy to answer any questions on the impact coronavirus has on your workforce, however you should remember that we can only give advice on the position when you ask us. Therefore, we would suggest that you contact us as close as possible to the issue arising as generic advice we may have given days previously may be out of date by the time you come to apply it.
2. Health and safety
In the event of a pandemic, employers have a duty to protect the health and safety of employees. During a pandemic, employers will face a conflict between the need to keep genuinely sick employees away from the workplace and the need to prevent unauthorised absence. However, in these circumstances, concerns about whether someone is a malingerer should give way to the very real need to prevent the spread of the disease.
3. If an Employee does not want to go to work but the Employer wishes them to
An employee might feel they do not want to go to work if they’re afraid of catching coronavirus. An employer should listen to any concerns staff may have, particularly if the employee has an illness or condition which amounts to a disability.
If there are genuine concerns, the employer must try to resolve them to protect the health and safety of their staff. For example, the employer could offer flexible working where possible, such as homeworking.
If an employee still does not want to go in, they may be able to arrange with their employer to take the time off as holiday or unpaid leave. The employer does not have to agree to this. If an employee refuses to attend work, it could result in disciplinary action.
If an employee does not want to attend work and is not ill and has not been advised to self-isolate, then they are not entitled to Statutory Sick Pay (SSP) or pay (unless the employee takes holidays or the employer agrees to paid leave). The payment position should be made clear to the employee.
4. If an Employer suspects an Employee may have the virus or has recently travelled from a high risk area but the Employee wishes to continue working, is there a right to suspend the Employee? (For circumstances where there is medical advice to self-isolate or quarantine, see Point 5 below)
If there is an identified risk that an employee may have been exposed to coronavirus then it is understandable, in light of an employer’s duty to protect the health and safety of other employees, that the employer would wish to keep that employee away from the workplace until the risk has passed. Ultimately, the employer may regard the risk of allowing the employee to remain at work as outweighing any employment law risk which could exist in suspending them.
In terms of the employment law position, it is unlikely to be a breach of implied duties to require an employee to stay at home in these circumstances (see below further comments on the question of pay), assuming there are reasonable and non-discriminatory grounds for concern, and the matter is dealt with appropriately, proportionately and sensitively.
It is worth noting the importance of dealing with suspension in this context sensitively and proportionately, as mentioned above. A failure to do so could amount to a breach of the implied duty of trust and confidence and give rise to a claim for constructive dismissal.
If the employee is diagnosed with coronavirus or is medically advised to self-isolate, or otherwise became too unwell to work, then again normal sick provisions apply (see below for the new SSP rules).
Where the employer takes the decision to suspend, against the wishes of the employee on health and safety grounds, because of a possible risk of infection, it is likely that they have the right to continue to receive full pay. The employer is not obliged to provide the employee with work provided it continues to pay wages but it could ask the employee to continue working from home if this is possible.
If the employer can persuade the employee to change their mind and agree to stay away from work then SSP will be payable (or contractual sick pay if applicable).
5. If an Employer suspects an Employee may have the virus or has recently travelled from a risk area and the Employee agrees to stay at home. (For circumstances where there is medical advice to self-isolate or quarantine, see Point 5 below)
The terms of pay in such a scenario should be agreed between the parties. If agreement cannot be reached for example, that the employee stays at home without pay and instead the employee insists on attending work, then the employer can suspend but will need to make full payment of salary in line with point 3 above. In these circumstances the employee should be encouraged to contact NHS direct to take advice on whether they should self-isolate. If they do self-isolate, SSP will be payable from day one (see below).
6. If someone cannot work because they’re in self-isolation or quarantine because they have travelled from a high risk area where the official medical advice is to take these steps.
Normal sick pay should be paid, even if someone is not sick but cannot work because they’ve been advised by a medical expert to self-isolate e.g. by NHS Direct. The Government has announced that NHS Direct will be able to issue written confirmation of this.
7. SSP payable from day one
Statutory sick pay (SSP) will be extended to all of those who are eligible and asked to self-isolate, even if they are not showing symptoms and will be payable as from day 1 of absence. At the moment it is unclear if this measure only applies if absences are linked to coronavirus.
SME employers, employing fewer than 250 employees will be able to recover statutory sick pay costs for up to 14 days for any member of staff who is advised to self isolate or is diagnosed with the coronavirus. SSP is payable even if the employee doesn’t have any symptoms but is advised to self-isolate.
8. Self-Employed and those not eligible for SSP
Self-employed people are usually not eligible for SSP, but the Government will now be making it “quicker and easier to get benefits” including those on a zero hours contacts, or those earning less than £118 a week.
For people on lower incomes, the Government will be temporarily removing the minimum income floor in Universal Credit.
If you would like to discuss further, please contact us by emailing firstname.lastname@example.org or by phoning 01392 247436.