Issues which many employers are likely to face during the Coronavirus outbreak.
Many employers will be concerned regarding the impact, or potential impact, of the Coronavirus (COVID-19) on their workforce and the smooth running of their business. The World Health Organisation has now declared the Coronavirus a Public Health Emergency of International Concern. Although the UK has thus far managed to prevent a significant outbreak of the disease (currently 36 cases have been confirmed), it is necessary for all employers to consider their obligations to their employees and how to deal with issues that arise.
What steps should employers be taking?
- Employers should carry out a risk assessment of the risks associated with the Coronavirus, in light of the employer’s duty to protect the health, safety and welfare of their staff. The risks will be different for every employer, depending on the type of work undertaken and the exposure staff will have with people from already affected areas. The risk assessment should then identify what (if any) measures will need to be implemented to mitigate the risk of employees contracting the virus. Employers should carefully review any travel arrangements to areas that have been affected by the virus and if travel should be restricted.
- Employers should make sure that appropriate levels of hygiene are maintained in the workplace. Employers could make sure anti-bacterial hand gel and handwash is provided for staff to use regularly.
- Employers should follow Government guidance and keep updated with any changes. This will include guidance concerning travel restrictions and the spread of the virus.
Public Health England (“PHE”) has currently advised self-isolation for the following groups of people:
- People who have travelled back from an area where the Coronavirus is known to be present and have symptoms and are awaiting a test result
- People who are identified as being a close contact of someone with the Coronavirus
- Returning travellers from Hubei province in China, Iran, lockdown areas in northern Italy and special care zones in South Korea, even if they do not have symptoms
- Returning travellers from certain other countries or areas, including other parts of China, northern Italy and South Korea, Japan, Macau, Malaysia, Singapore, Taiwan, Thailand, Cambodia, Laos, Myanmar, if they have a cough, high temperature or shortness of breath (even if the symptoms are mild).
If an employee falls in any of the above categories, an employer can reasonably request that the employee self-isolates for 14 days (in line with PHE guidance) and only come back to work after this period. Given an employer’s duty to protect the health and safety of the workforce, it would be sensible for employers to send an e-mail/policy to all staff outlining when an employee is required to self-isolate. If an employee does not abide by the policy or instruction, then this may be a failure to abide by a reasonable management instruction which could result in disciplinary action. Specific advice should be taken before disciplinary action is taken, however.
5 frequently asked questions regarding self-isolation
1. What happens if an employee is quarantined whilst on holiday?
If an employee becomes unwell during a holiday, they can elect to take this time as sick leave rather than annual leave. Accordingly, they would be paid in accordance with their contractual sick pay entitlement. If they are not feeling unwell and cannot return to work at the end of their holiday due to being quarantined, then the employee should contact their employer to update them. The employee could elect to take the additional leave as holiday (and receive full pay) or unpaid leave.
2. What if an employee decides to self-isolate but is not displaying symptoms?
If an employee is not feeling unwell and does not fall into one of the groups identified by PHE, then it would be sensible for the employer to have an informal meeting with the employee to discuss their concerns. The employer can then explain the measures and precautions put in place to mitigate the risk of infection. An employer should carefully consider their approach in situations where an employee is pregnant or has a pre-existing health condition which may make them more vulnerable if they contracted the virus. If the employee still refuses to come to work even though they are fit for work, then:
a) The employer could agree that the employee takes the time off as holiday (and will receive full pay);
b) The employer could agree that the employee takes the time off as unpaid leave;
c) The employer could agree that the employee works from home (if this is a feasible option for the employer) and of course will receive full pay.
If the employer considers that the employee is unreasonably refusing to attend work despite suitable measures being put in place and after listening to their concerns, an employer could decide to take disciplinary action against the employer for unauthorised absence from work. This would only apply if the employee is not taking the time off as holiday or working from home as agreed with the employer. However, employers should be cautious to make sure they are not discriminating against an employee (for example, if the employee is pregnant) and take advice.
3. What do employers have to pay employees if they are in self-isolation?
If an employee is sick and not fit for work, then they will be entitled to sick pay in accordance with their contract of employment.
If an employee is not unwell but is caught by one of the groups identified by PHE as above, then they should self-isolate. There is no right to sick pay if an employee is not sick. However, as outlined above, employers should consider if the employee could work from home or take the time as holiday. If not, then ACAS Guidance suggests that the employer should, as good practice, pay the employee sick pay in accordance with their contractual entitlement.
4. Can an employer instruct an employee to self-isolate if they have visited a country that is not currently identified by PHE as an affected area?
If an employee has been on holiday to a country which is not listed by PHE but the employer has concerns about their return to work, then they should be cautious about refusing the employee returning to work. An employee could claim such refusal is a breach of the implied term of mutual trust and confidence and look to resign and claim unfair dismissal. However, if the employer has reasonable and genuine concerns about where the employee has visited and the impact this could have on the workforce, then the employer could ask the employee to work from home for 14 days (if possible), or ask them to refrain from coming into work for 14 days on full pay. As it is the employer who is requesting the employee does not attend work and this is not specifically in line with Government guidance, this is akin to a suspension and the employee should receive their usual pay for this period. The employer should regularly communicate with the employee during this period, review the absence and any updated Government guidance.
5. Should staff on zero hours contracts etc be paid if they self-isolated?
If a worker engaged on a zero hours contract has been offered and accepted work, the same principles regarding pay will apply as for employees engaged on permanent full time contracts of employment. For example, if the worker is unwell and has to self-isolate, they will be entitled to sick pay in accordance with the contract.
However, if the employer has not made an offer of work, then there will be no obligation to pay the worker if they become unwell or self-isolate. The contract in place would most likely state that the company may offer work from time to time and is under no obligation to offer the work.
If you would like specific advice regarding the Coronavirus, then please contact Andrew Willshire.