We are receiving a large number of enquiries relating to the coronavirus outbreak. If you are an employee whose employment has been affected you may be feeling particularly vulnerable.
Here is some of the advice we are providing when it comes to your employment situation.
What do I do about work if I have symptoms?
If you are displaying symptoms the government advises, at the time of publication, to self-isolate and not to leave your home for at least seven days. You should not attend work and should let your employer know.
In terms of the evidence you may need, you will usually be able to self-certify for the first seven days you have off. After that your employer may ask for a Statement of Fitness for Work (aka ‘fit note’) from your doctor. At the time of publication the government is saying that they are developing an alternative to the fit note as these may be hard to come by and that this will be available on the NHS website shortly.
Statutory sick pay
Statutory Sick Pay (SSP) is usually payable where there are at least four days of sickness absence. For COVID-19 cases it is now payable from day one.
To access SSP there is a statutory requirement for a fit note after seven days, but it looks as though this will be relaxed.
Of course, you may also be entitled to sick pay under your contract of employment (contractual sick pay).
Where can I find out about Furlough?
We have answers to most of your questions about Furlough here.
If I am off sick and cannot obtain a doctor’s certificate, can my employer sack me?
While the government puts the alternative sickness certification process in place, you may find it hard to provide your employer with a fit note covering your period of absence. If your employer were to dismiss you in these circumstances, whether this would be fair or not depends very much on the particular circumstances of your situation.
If you have less than two years’ continuous service and therefore don’t have unfair dismissal rights, and your employer is minded to dismiss you, you are vulnerable and may find yourself in something of a difficult situation.
If you do have unfair dismissal rights and your employer dismisses you simply for not providing the certification when you can’t do so, this is likely to be unfair, bearing in mind the government’s clear message to employers at the present time to ‘show flexibility in the evidence they require from employees’.
There is talk online (at the time of publication) of NHS 111 having the ability to issue an email confirmation of the coronavirus diagnosis. This is uncertain, however.
What do I do about work if someone in my household has symptoms? Can my employer sack me for staying at home?
One of the stringent steps suggested by the prime minister is that whole households should self-isolate for at least 14 days when someone shows sypmtoms.
While the prime minister’s statement isn’t in itself legally enforceable, it does serve to put employers on notice that they should think carefully about dismissing in these circumstances.
Employers will also need to bear in mind that they have a duty to provide a safe place of work for their employees. This will obviously be affected by insisting that potential carriers of the virus come in to work.
On the other hand, employers do have a legal right to give employees reasonable and lawful work instructions, one of which may be to require the employee to come into work as this is ‘essential’.
The obvious answer is to allow the employee to work from home and to make this possible. Only after exploring these possibilities fully will any dismissal be ‘fair’.
Again, those without unfair dismissal rights (employed for fewer than two years) will find themselves in the most vulnerable position.
What do I do if I am worried about my place of work not being healthy, but my employer is insisting I come in?
As an employee you may have rights under Section 100 of the Employment Rights Act 1996. This gives employees the right to leave a place of work where there is an imminent health and safety danger. However, this will only apply in the most extreme circumstances.
Current government advice is that places of work do not need to be shut down where the virus has been present. This means your employer’s request for you to come into work could be legitimate.
The answer is to work with your employer to find a solution. A starting place for this will undoubtedly be a discussion about the possibility of working from home.
I am in a high-risk category. Do I need to continue going in to work?
The prime minister has said that avoiding social contact is particularly important for people over 70, for pregnant women and for those with some health conditions. So, if you are in one of these categories what should you do?
The government recommendation is that any unnecessary social contact should be avoided. A time period of 12 weeks for this has been suggested.
From a legal point of view, the important thing to note here is that this is a recommendation only and that it does not cover necessary social contact. So, the question boils down to an interpretation of what is deemed ‘necessary’. The recommendation against unnecessary travel will also come into play here.
Our view is that the term ‘necessary’ should be given broad consideration; it could well be right that you attend work and reasonable of your employer to insist that you do so.
If your employer wants to force the issue and threaten dismissal, they will need to seriously consider working from home where you have unfair dismissal rights.
If you really don’t want to attend work but you think your employer is reasonably insisting that you must, there is the option of using some annual leave or taking some unpaid leave.
What do I do about work if I have been in close contact with someone who has been exposed to infection or been somewhere considered to be ‘high risk’?
Current NHS guidance is only to self-isolate where there is a confirmed case in your household, if you are exhibiting symptoms. At the time of writing, we’ve also noticed that advice on the government website about self-isolating when returning from a high-risk country has been withdrawn. So this, in itself, may not be a good reason for not attending work.
What can I do if my employer sends me home but won’t pay me?
In these cases, as you are willing and able to work, you should be paid. If you are not, you will be able to bring claims for unlawful deductions from wages provided you work ‘under protest’. Alternatively, you could resign and bring a claim for constructive dismissal.
You need to be aware that your employer may ultimately make you redundant where there is a downturn in work, or otherwise dismiss you where there is a significant shift in the nature of the business. So, it may be in your interest to come to an arrangement which may involve paid or unpaid leave.
Where your employer has a contractual right to send you home without pay (known as ‘lay off’) your entitlement to a redundancy payment might be triggered if you are laid off for 4 consecutive weeks or for 6 weeks in any 13 week rolling period, provided you follow the correct procedures.
I need to self-isolate, what are my rights?
You may be self-isolating because you have symptoms. In this case you should be treated as if you were absent on sick leave in the normal way.
The situation is more complicated when you are self-isolating because someone in your household has the infection. Government advice is that you should self-isolate for 14 days. From a legal perspective, whilst this may not be treated as sick leave (although your employer should be expected to show some latitude) strictly speaking there will be no right to pay in these circumstances, where home-working is not an option. However, Statutory Sick Pay (SSP) should be available.
In our view, staying at home because of advice not to travel is not the same as self-isolation. This could mean both SSP and the latitude that might be expected from your employer would not be forthcoming.
The government advises that I should not travel, but my employer is insisting I come in to work. Can my employer do this?
In this situation you will need to have a good reason not to be willing and ready to work. Your employer may have an argument that it is ‘necessary’ for you to come in to work for business reasons.
Again, by not travelling into work against the wishes of your employer you will be putting yourself in a vulnerable position. This is because you will have no right to pay and may be dismissed fairly if you do not attend work and if your employer is right that travel for these reasons is necessary.
However, for any action to be fair, your employer will need to have explored other possibilities with you, such as taking some unpaid leave, taking the time as annual leave, or working from home.
Is travel to work ‘necessary’?
Under government guidance, necessary travel is still permissible. Whether travel to work is necessary or not will depend on the nature of your work and whether it is possible to do it from home. Our view is that the word ‘necessary’ should carry a broad definition.
I’ve been told to work from home, but I’m not able to be productive and meet my targets
There is a real risk that your employer is asking you to work from home but you simply can’t do this effectively, for instance because you need to sell to or consult with your customers face-to-face. In these circumstances you need to discuss with your employer whether it is actually ‘necessary’ for you to travel for work. There will presumably be a business interest in your employer changing their mind if this is the case.
You need to be aware that your employer could dismiss you fairly – either for redundancy or other sound business reason – and you would be particularly at risk in this regard. However where you have unfair dismissal rights your employer would need to be reasonable about your targets which may mean adjusting them to a degree to allow for the current emergency.
Can my employer force me to work from home?
There is likely to be a mobility clause in the contract which means that your employer can certainly do this. Even if there is no mobility clause, it is still likely that this would be a reasonable and lawful instruction in the current circumstances, meaning you would likely have to obey this instruction.
However, you may be entitled to some payment for use of your facilities, paper, broadband, etc.
You should also be given a safe place of work: this may include a good chair, desk and screen for office work, although it is likely to be reasonable for your employer to make you use your own facilities given the current emergency.
Can my employer reduce my hours?
Your employer would usually need to agree any reduction with you, failing which you would have a claim for unlawful deduction of wages provided you work ‘under protest’. Alternatively, you could resign and bring a claim for constructive dismissal.
If your employment contract allows your employer to reduce your hours, this may trigger a redundancy if your pay is reduced by more than 50% for four consecutive weeks or 6 weeks in any 13 week rolling period, provided you follow the right procedures.
Any further questions?
If you would like help with your particular situation, please get in touch. Our case review service may be perfect for you.