As of the date of writing this article, 1,543 people in the UK have tested positive for COVID-19. The spread of this virus is so fast and wide-reaching that it will have repercussions for most, if not all, employers and employees in the UK. Employers will want to manage any risk to their business, but should do so proportionately, with a view to their employee’s needs and legal rights.
ACAS has produced helpful guidance for both employers and employees on how to respond to coronavirus, which are set out below.
Self-isolation and sick pay
The current advice from the UK government is to stay at home for 7 days if you have a high temperature and/or a new, persistent cough. Many employees and workers may need to self-isolate and will not be able to come into work, if:
• they have coronavirus;
• they have a high temperature or a new persistent cough;
• a doctor or NHS 111 has told them to self-isolate;
• they have returned from an affected area, for example China or Italy; or
• they are over 70.
In all of the above cases, those employees or workers must be paid statutory sick pay (SSP) while they are in self-isolation and cannot work. Employers might offer a higher rate of sick pay in the individual’s contract. SSP is now payable from the first day of self-isolation, rather than the fourth day as it is normally. Employers may also need to be flexible if it’s member of staff cannot provide a sick note to prove their illness, but have been told to self-isolate for more than 7 days. Employees should tell their employer as soon as possible that they need to self-isolate, why this is, and how long they are likely to be away from work.
The Government has advised social distancing. This means that where possible, we should avoid unnecessary contact with other people. Employers should ensure that staff can comply with this where possible, for instance by:
• allowing staff to work from home where possible;
• allow staff to work more flexibly, for example by shifting working hours to help staff to avoid busy commuting times on public transport; and
• cancelling or postponing face-to-face meetings or gatherings. These should be rearranged to a video or conference call where possible. Working from home Where work can be done from home, the employer could ask staff with laptops or phones to use these to work from home, or otherwise arrange paperwork tasks to be done from home. The employer should pay the employee their usual pay, keep in regular contact, and check on their employees’ health and wellbeing.
Not coming to work for another reason
If an employee is not sick but their employer tells them not to come to work – the employee should get their usual pay. The employer must be sure not to single out any one person on the grounds of race or ethnicity, as this could give rise to discrimination issues.
Employers should be especially careful to consider making any necessary changes for more vulnerable staff, including those who are aged 70 or over, pregnant, or have underlying health conditions. Employers should be aware that where an underlying health condition amounts to a disability, they may have a duty to make reasonable adjustments for that staff member.
Caring for dependents
Employees can take a reasonable amount of time off work if they need to support a dependent due to coronavirus. For instance, if an employee needs to help a dependent who is sick, or parents who need to look after their children during working hours now that the government has closed schools. A ‘reasonable time’ could be 2 days, and after this the employee will need to book time off as holiday. The employer does not need to pay the employee for this emergency time off, unless the employment contract says otherwise. It is helpful if employers and employees discuss this early on and try to agree flexible working, such as working from home or a change of hours, where possible. Such agreement should ideally be in writing, and checked over by a solicitor to ensure that it is enforceable.
If an employee is scared that they might catch the virus at work
The employer should listen to these concerns, and try to resolve them. For example, employers could offer flexible working, or arrange that the time off be taken as holiday or unpaid leave. This is to protect staff health and safety. However, the employer does not have to agree to let the employee take leave, and employees should be aware that if they refuse to attend work this could result in disciplinary action.
Coronavirus in the workplace
If an employee has coronavirus symptoms at work they should try not touch anything, and to distance themselves as much as possible from other people in the workplace. The employee should call 111, or ask a colleague to call 111 for advice. If they are in serious danger, 999 should be called instead. • If someone with coronavirus comes to work in England, the Public Health England health protection team will make contact with the employer to discuss the case, carry out a risk assessment and advise the employer.
If the workplace is closed employees should be allowed to work from home where possible, and employers will need to ensure that their staff can communicate with their colleagues and employer when away from the workplace.
More affected employers might need to ask their staff to reduce their work hours. Unless this is allowed under the contract, or is agreed by the staff, the employer will still need to pay their employees in full.
If the business is closed
The effects of coronavirus may require some employers to shut down and stop doing business for a short time. The employer should let its staff know of the closure as soon as possible, and keep in touch with staff during the closure. Unless the employment contracts say otherwise, the employer will still need to pay its employees during this time. If the contract does allows lay-offs, employees who are laid off and not entitled to their usual pay may still be able entitled to a ‘statutory guarantee’ payment of up to £29 a day from their employer, for up to 5 days in any 3 month period. Laid off employees could consider claiming Jobseeker’s Allowance for any other days.
Requiring employees to use holiday
If needed, employers are allowed to tell employees and workers when to take holiday. The employer must tell its staff at least twice as many days before the amount of days of required holiday. For instance, if work will shut for 5 days and staff must take this as holiday, the employer must inform staff at least 10 days in advance. The employer should explain clearly to staff why the closure is necessary.
Lay-offs and short-time working
More affected businesses may need to close for a short time
Other steps for employers
Keep everyone updated on actions the employer is taking to reduce risk of exposure.
You can find further information here: • ACAS guidance • Coronavirus on NHS.UK • Latest coronavirus advice on GOV.UK
We have been and continue to advise businesses on their employment and HR strategy and planning. If you would like a video call with one of our employment lawyers please contact James Simpson, Head of Employment, on 01494 478689 or at email@example.com