We are receiving a large number of enquires relating to the coronavirus outbreak. Below is some of the advice we are providing.
If you would like us to draw up policy guidelines for your business, or if you are dealing with a coronavirus issue as an employee, please give us a call and speak to one of our expert solicitors.
Currently employees should only attend work if they cannot work from home.
Government guidance for employers can be found here.
Furlough – what is it and can I use it?
We have comprehensive information about Furlough here. The information applies as well for employers as it does for employees.
Practical Coronavirus guidance for employers
Here’s what we are doing at Springhouse, and what we are advising our clients to do:
- Complete a risk assessment and take reasonable steps to prevent harm to your workers.
- Where workers have to come to work, or once this is permissible, make sure that your employees can stay 2m apart where possible. If this is not possible, they should be at least 1m apart and you should do what you can to minimise the virus spread, to include using face coverings, moving workers so that they are not facing each other and using screens.
- Increase ventilation.
- Take part in the NHS Test and Trace system.
- Keep staff posted and up to date regarding your plans for dealing with the COVID-19 outbreak. Obviously, you will want to reduce the risk of any incidences of the illness within your workforce, and provide up-to-date guidance; taking into account the most recent government advice.
- Make sure everyone can identify the symptoms of coronavirus.
- Make sure staff have good access to hand sanitisers and handwashing equipment.
What to do if staff are off sick, and they think this is Coronavirus-related
Government guidelines require anyone with symptoms of Coronavirus to take a test as soon as possible and to self-isolate until the results are available. If they test positive, they must self-isolate for ten days from the date the symptoms started or, if there were no symptoms, from the date of the test. If symptoms subsequently develop, they must self-isolate for ten days from the date after the symptoms start.
Employees should follow the usual routine when it comes to sick leave during the coronavirus outbreak. This should either be in their contract of employment or in a sickness absence policy. Usually they would be expected to let their employer know first thing on the first day of illness, and each day thereafter.
Evidence will be by way of an NHS isolation note, created to ease pressure on GP’s surgeries.
As an employer, you should follow your usual sickness absence processes and procedures. At present it would probably be unfair, if your employee has more than two years’ service, to dismiss them because they have been absent with Coronavirus-related sickness.
Employees may have additional 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. This gives them the right to automatic unfair dismissal rights, where two years’ service is not required. However, this right will only be in the most extreme circumstances.
What if the employee needs to take time off work to look after a dependant with Coronavirus?
Again, the usual processes should be followed. Bear in mind that employees with dependants do have a right to emergency time off, and these circumstances may cover such a situation. The amount of time taken off must be reasonable for the situation.
Employees who have had direct contact with the virus will need to self-isolate.
Do I have to pay an employee who is self-isolating because of contact with the virus?
When someone has symptoms of Coronavirus, government guidance requires their whole household to self-isolate for at least 10 days. If it is possible for the employee to work from home, then they should continue to do this, assuming they do not become unwell themselves.
Employers are advised to think carefully before dismissing workers whom the government requires to self-isolate because of contact with someone who has Coronavirus.
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 into work.
On the other hand, as an employer you have a legal right to give employees reasonable and lawful work instructions, one of which may be to require them 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’.
What if the employee self-isolates on medical advice?
If an employee is clinically vulnerable they may be at higher risk of sever illness if they contract the virus.
If they are classed as clinically extremely vulnerable and at a high risk from Coronavirus, they are advised to stay at home as much as possible and only leave for medical appointments, exercise or if it is essential.
If they are classed as clinically vulnerable and at a moderate risk from Coronavirus, they are advised to follow social distancing advice, which currently means working from home where possible.
Government guidance states that if someone is clinically extremely vulnerable and cannot work from home, then they should not attend work.
Employees who are self-isolating on medical advice should be treated as being on sick leave and are eligible for statutory sick pay. Medical evidence will be by way of sight of their formal shielding letter issued by the NHS.
For more information, please see Government guidance for households with possible Coronavirus infection. The employee will probably be entitled to any company sick pay in the usual way. Their formal shielding letter should be considered sufficient evidence of their need to shield.
However, if the contract doesn’t oblige you to pay sick pay and you decide not to, consideration needs to be given to whether the member of staff or dependant has any underlying medical condition for example, an affected immune system. This could be legally classed as a disability and you will be required to make reasonable adjustments to enable them to work safely.
You can consider fulough for employees who are not able to attend work, or they may be eligible for Statutory Sick Pay, Test and Trace Support Payment, Employment Support Allowance or Universal Credit.
What about employees who do not want to go into work because they fear contracting COVID-19?
There is no clear answer here. Each circumstance will need to be taken on its own facts, bearing in mind that employees should be working from home where this is possible in any case.
Where attending the workplace is necessary it would be sensible to discuss this with the member of staff in question and to explore whether there may be some temporary flexible working arrangements that can be put in place. Alternatively, consider whether any unpaid leave or holiday can be taken under the circumstances.
If an employee does continue unreasonably not to attend work due to fear of Coronavirus, disciplinary action may properly be taken against them, but again this will depend on the particular circumstances of the case, bearing in mind that the current measure of ‘reasonableness’ has been radically altered by the current government requirement that the workplace should only be attended where it is not possible to work from home.
What if you wish to suspend the employee from work without medical advice (imposed isolation)?
You will probably need to suspend the employee on full-pay but it is a good idea to take advice if this is an issue for you.
What if someone becomes ill while they are at work?
There is some good advice on the ACAS website. In brief they advise as follows:
- The individual should be kept at least two metres away from other people, and in a separate room.
- They should avoid touching anything.
- If they are coughing and sneezing they should always do so into a tissue and put the tissue into a bin.
- They should use a separate bathroom from others.
- If they need medical assistance, dial 111 or 999, depending on the level of the emergency.
ACAS is at pains to point out that a business does not have to close just because someone with coronavirus has come onto the premises. They point out that the local Public Health England health protection team will assist if they are contacted as to how to deal with the situation.
Can I reduce my employees’ hours, or not pay them temporarily?
Have a look at your contracts of employment. They may entitle you to lay staff off or have them work shorter hours when there is a downturn in work. You need to be aware that in certain circumstances using these powers might end in statutory redundancy if the employee elects this. This is an unlikely scenario in the current crisis however.
If your contracts do not allow for this, you should seek the agreement of your employees.
If you need to unilaterally impose the change because no agreement is reached, you need to be wary of the situation where an employee is ‘working under protest’ , in which case you could be liable for an unauthorised deductions from wages claim.
Better to bring matters to a head on the basis that the employment will have to end if the new working arrangements are not agreed. You would then have two alternatives – redundancy or business-reason termination. In either case where employees have more than 2 years’ service you will need to be careful to have a business rationale and follow a proper procedure. No matter how long the employee has been with you, you will need to avoid making decisions on the basis of any protected characteristic, such as disability, as this could amount to unlawful discrimination or because of something the employee has said or done relating to the pandemic (or otherwise in normal cases).
What do I need to bear in mind when my employees are working from home?
Working from home where possible will now be the norm, and you need to bear in mind the following:
- If you do not have a clause in your employment contracts giving you the right to make your staff work from home (known as a ‘mobility clause’), you should first agree this with your employee. If they do not agree this is likely to be a reasonable and lawful instruction given the current crisis, to your employee’s refusal could be a disciplinary matter.
- As an employer you still have a duty to provide a safe place of work. You will need to make sure that your staff can work safely, with a decent desk set up for instance.
- You need to bear in mind your responsibility to keep your customers’ data safe. Depending on your working systems, you may need to put some special rules in place.
- A working from home policy and a health and safety checklist will be a good idea and should cover everything off in a straightforward way.
Contact Springhouse Employment Solicitors
If you would like advice or guidance in respect of employment issues surrounding the Coronavirus pandemic, our experienced employment solicitors will be happy to help. Contact us today by ringing 0800 915 7777 or fill in the contact form on our website. Our team is ready to give you clear, accurate advice.