The outbreak of the coronavirus COVID-19 has rarely been out of the media over recent weeks. With the world on high alert and efforts by governments to contain the spread of the virus, this has undoubtedly presented real challenges for businesses.
Sarah Begley, Solicitor in the Employment Team at The Wilkes Partnership considers the key problem areas and practical guidance for employers. She says “In terms of people management, this is a balancing exercise between both employment law and health and safety obligations”.
How can we reduce the risk to our employees?
The risk level is currently identified as moderate. It is sensible for employers to send round an email/guidance encouraging employees to be extra-vigilant with washing their hands, using and disposing of tissues etc. If you have the capacity to do so, it may be worth designating an ‘isolation room’ where an employee who feels ill can go and sit away from the rest of the company and privately call ‘111’ before taking any further necessary action.
If an employee is not sick but is in quarantine or self-isolation, do we have to pay them sick pay?
There is no legal right to sick pay in these circumstances, but it would be good practice. Health Secretary, Matt Hancock, told MPs on Wednesday, 27 February “Self-isolation on medical advice is considered sickness for employment purposes”. Considerations could be given, where appropriate, to working remotely for 14 days following an employee’s return from a specified infected zone. If that is not possible, the general principle is that employees who are ready and willing to come to work should continue to be paid. Otherwise you run the risk of them coming into work and potentially spreading the virus to the rest of the workforce. There is also a (fairly low) risk of an argument that – by choosing not to pay someone who has self-isolated – you have breached the implied term of trust and confidence and hence constructively dismissed them. If they do present symptoms, then you should pay them sick pay in accordance with the normal company sick pay policy.
What if employees do not want to come to work?
Some people may be worried about catching coronavirus and therefore unwilling to come into work. If this is the case you should listen carefully to the concerns of your employees and if possible, offer flexible working arrangements such as homeworking. Employees can also request time off as holiday or unpaid leave but there is no obligation on employers to agree to this. If an employee refuses to attend work, you are entitled to take disciplinary action. This is likely to fall within a misconduct offence of failing to obey a reasonable management instruction to come to work. However, it is likely that dismissal would be considered to be outside the range of reasonable responses, at least for now. If someone refuses to come into work and the COVID-19 issues continue into the medium term that may change.
It is prudent to remind employees of their obligations under any company anti-discriminatory policy and carefully monitor any complaints or grievances which suggest discriminatory behaviour directed towards employees of Asian origin.
Sarah adds “this is a rapidly changing situation and the guidance provided is frequently updated. I would advise businesses to pay attention to the Government updates currently published daily at 2pm as well as very useful workplace specific guidance provided by ACAS”.
If your industry has been affected by coronavirus and you have a downturn in work, you may also find this guidance on short time working and lay-offs useful.
To discuss anything arising from this update, please contact Sarah Begley on 0121 733 4312 or via email at [email protected]