Data Protection is often a minefield for Employers at the best of times but what Data Protection issues could the Coronavirus outbreak create? We have collated information from a variety of reliable sources and provide it here to ensure UK Employers are aware of their legal obligations and to assist them to deal with the various implications imposed by the rapid spread of the COVID-19 (Coronavirus) outbreak.
If you are an employer affected by any of the issues being created by the outbreak of Coronavirus and require further assistance and support, call us now on 0800 612 4772 or Contact us via our website.
This article focuses on Data Protection Issues.
Data protection issues
Do employees have the right to be notified if colleague/customer develops the virus?
The Data Protection Act 2018 defines information about an employee’s health as a “special category of personal data”. This means that it can only be processed by the employer in defined and restricted circumstances.
Employees must be notified of the infection risk as soon as possible. However, the identity of the individual should not be disclosed. An employer should simply advise that an employee who has been in the workplace has been infected and that appropriate precautions should be taken.
The ICO has confirmed that it will take a pragmatic approach to enforcement in light of the pandemic. It has issued ICO: Data protection and coronavirus: what you need to know which confirms that employers can disclose to colleagues that an employee has contracted COVID-19 provided that they do not provide more information than is necessary and, in most cases, it will not be necessary to name the individual.
Government Guidance
The COVID-19 pandemic is continually changing and the government advice for employers is being updated as the situation develops. Employers should keep track of the guidance for employers from the following sources:
Health Protection Scotland: COVID-19: Information and Guidance for Non-Healthcare Settings (applicable in Scotland).
All Employers have a duty of care to their employees but the Coronavirus outbreak has created a variety of challenges for Employers and a degree of uncertainty about how far that duty of care extends. This article focuses on Employer’s Duty of Care.
If you are an employer affected by any of the issues being created by the outbreak of Coronavirus and require further assistance and support, call us now on 0800 612 4772 or Contact us via our website.
Employer’s duty of care
What should an employer do where an employee who is at work starts displaying symptoms?
The government guidance from Public Health England and BEIS and the Acas guidance (see Government and Acas guidance), advise that if the employee has not been to one of the high-risk specified areas in the last 14 days, then normal practice should continue. However, if the employee has travelled to one of the affected countries in the last 14 days, they should be removed to an area which is at least two metres away from other people. If possible, this should be a room or area where they can be isolated behind a closed door, such as a staff office. A window should be opened, if possible, for ventilation.
The guidance advises that the affected employee should call NHS 111 from their mobile, or 999 should be called if it is an emergency (if the employee is seriously ill or injured or their life is at risk) and explain which country they have returned from in the last 14 days and outline their current symptoms.
While the employee waits for advice from NHS 111 or an ambulance to arrive, they should remain at least two metres away from other people. They should avoid touching people, surfaces and objects and be advised to cover their mouth and nose with a disposable tissue when they cough or sneeze and put the tissue in a bag or pocket then throw the tissue in the bin. If they do not have any tissues available, they should cough and sneeze into the crook of their elbow.
If the employee needs to go to the bathroom while waiting for medical assistance, they should use a separate bathroom if available.
Both the government guidance and the Acas guidance are updated frequently and employers would be advised to check the online versions for the latest advice. The Welsh Government and Health Protection Scotland have also issued guidance on this issue.
At what point should an employer close the workplace?
The Acas guidance advises that if someone with COVID-19 comes into a workplace, the workplace does not necessarily have to close.
In England, the local Public Health England health protection team (HPT) will get in contact with the employer to:
Discuss the case.
Identify people who have been in contact with the affected person.
Carry out a risk assessment.
Advise on any actions or precautions to take.
A risk assessment of each setting will be undertaken by the HPT with the lead responsible person. Advice on the management of staff and members of the public will be based on this assessment.
The HPT will also be in contact with the case directly to advise on isolation and identifying other contacts and will be in touch with any contacts of the case to provide them with appropriate advice.
Advice on cleaning of communal areas such as offices or toilets will also be given by the HPT.
The process may be slightly different in Scotland and Wales (see Government guidance below for links to the relevant guidance).
Can employers lawfully conduct temperature checks on employees, workers or visitors?
Consent
An employer cannot require an employee, worker or visitor to their premises to undergo a medical examination without their consent. This would include taking temperatures. To proceed without consent could potentially be a repudiatory breach of contract in respect of employees, entitling them to claim constructive dismissal, and assault in relation to any individual.
However, on a practical level, if the nature of the employer’s business is such that it considers it would need to temporarily close or send employees and workers home during a pandemic unless it undertook such health checks, consent may not be an issue in the majority of cases. On a personal level, employees and workers may be reassured that the employer is taking steps to protect their health in the workplace, as long as testing is carried out on all staff and visitors without exceptions, and appropriate hygiene safeguards are in place.
Data protection
Obtaining health information about an individual is special category personal data and an employer (or data controller) can only process such data on certain grounds under the GDPR.
One of the permitted grounds for processing special category data is for health purposes. As it says in these sections, the health exemption enables occupational health professionals to process data relating to health where processing is necessary for the purposes of preventative or occupational medicine, for the assessment of the working capacity of the employee, medical diagnosis or management and treatment. This exception will only apply to occupational health professionals who are subject to confidentiality obligations, such as those issued by the General Medical Council regulating the conduct of medical practitioners.
This may mean that provided an employer uses an occupational health professional to conduct the temperature checks and obtains explicit consent, it may be possible to conduct these temperature checks lawfully. However, at present we are not aware of any authority on this point. A generic form of consent in employment contracts relating to health checks is unlikely to be sufficient for data protection purposes.
Health and safety
An employer has health and safety obligations towards its employees. It may be arguable that carrying out temperature checks may be part of a series of measures which assists employers to protect the health and safety of their employees in a pandemic. However, in relation to the COVID-19 pandemic, taking temperatures is not a measure currently recommended by the government or the World Health Organisation. An employer should first focus on ensuring that the advice recommended by those sources is followed. The guidance is however being continually updated so it is necessary to regularly check for the latest developments.
Potential discrimination issues
If an employer decides to carry out any form of medical testing on employees, workers or visitors during a pandemic, it should ensure that it is applied consistently to all. Only testing certain groups who are perceived to be at a higher risk of having contracted a virus could potentially lead to discrimination claims.
Government Guidance
The COVID-19 pandemic is continually changing and the government advice for employers is being updated as the situation develops. Employers should keep track of the guidance for employers from the following sources:
Health Protection Scotland: COVID-19: Information and Guidance for Non-Healthcare Settings (applicable in Scotland).
This article focuses on Changing Employment Terms and Lay-offs and is intended to support Employers impacted by the rapid spread of the COVID-19 outbreak and who are thinking of reducing staff hours, temporarily laying staff off or making redundancies.
The team at Employment Law Services (ELS) continues to work tirelessly to help support employers to assist them to prevent problems and protect their businesses by providing practical employment law advice. We have collated information from a variety of reliable sources and provide it here to ensure UK Employers are aware of their legal obligations and to assist them to deal with the various implications imposed by the rapid spread of the COVID-19 (Coronavirus) outbreak.
If you are an employer affected by any of the issues being created by the outbreak of Coronavirus and require further assistance and support, call us now on 0800 612 4772 or Contact us via our website.
Dealing with the economic impact: changing terms and lay-off
What action should employers be taking now?
The action an employer should be taking will depend, to some extent, upon the nature of the workplace, the roles carried out and the demographic of the workforce, but some of the issues that employers should consider from an employment law perspective include:
The employer’s approach to sick pay in the various scenarios identified in our Absence and pay: no symptoms or diagnosis bulletin. The employer should consider its contractual sick pay policy, and the practical implications on withholding pay or reducing pay to SSP. The employer will wish to balance the costs of paying full pay where they are not legal obliged to do so with the indirect costs (in terms of spreading the virus and increasing sickness absence) where employees attend work following potential exposure to the virus, or even when exhibiting symptoms of it, in order to continue receiving pay.
Whether the infrastructure is in place to allow large numbers of employees to work from home. Is the IT system prepared for a high number of employees to work remotely? Do employees have the hardware necessary to work from home? Will additional guidance need to be issued to reduce demand on the IT systems if many people will be working remotely simultaneously?
Compliance with government, PHE and WHO guidance on hygiene in the workplace, and other preventative measures. Consider appointing a coronavirus taskforce who are responsible for keeping track of developments, updating internal guidance and communicating with workers.
Clear communication with workers on the employer’s policy on homeworking, work travel and precautionary isolation.
Ensure that employees have provided up to date personal details.
Plan for mass closures of schools and nurseries. Identify business critical roles and how they can be maintained. Consider what pay employees will receive if they work part-time to fit around childcare, and the benefits of acting flexibly to allow as many employees as possible to continue working. Consider whether the business would be best served by encouraging employees to work flexibly and making that facility available, or by encouraging the use of statutory rights to time off to care for dependants, annual leave or parental leave.
Provide clear information to managers on how to deal with an employee who attends work displaying symptoms, or who has potentially been exposed to the virus.
Identify any high-risk employees and consider whether there are any potential discrimination implications which mean a more cautious approach is required.
Critically consider whether any domestic and international work travel and events are necessary. Consider whether internal meetings can be carried out through virtual meetings.
Where travel is necessary to high risk areas, consider what protective measures should be put in place and ensure that protective equipment is sourced and ordered.
Identify the minimum safe level of workers required to continue operating, and how that can be maintained in the worst-case scenario. Identify the point at which the business may need to cease operating temporarily and consider the employment law consequences.
In what circumstances should the employer consider lay-off and short-time working?
Laying off employees means that the employer provides employees with no work (and no pay) for a period while retaining them as employees; short-time working means providing employees with less work (and less pay) for a period while retaining them as employees. These are temporary solution to the problem of no or less work. However, if employees are laid-off or put on short-time working in circumstances where the employer does not have the contractual right to do so then the employer will be in fundamental breach of contract entitling the employee to resign and claim constructive dismissal.
Lay-off may need to be considered in the following scenarios:
A downturn in work due to the effect of COVID-19 on suppliers and customers means that fewer employees are required on a temporary basis.
Temporary closure of the workplace due to insufficient employees being able to work.
Short-time working may need to be considered where there is:
A downturn in work due to the effect of COVID-19 on suppliers and customers meaning that the business does not need all employees to work their contracted hours.
Employees who are already unable to work, for example due to sickness or (arguably) medically advised self-isolation, cannot be laid-off.
Government guidance
The COVID-19 pandemic is continually changing and the government advice for employers is being updated as the situation develops. Employers should keep track of the guidance for employers from the following sources:
Health Protection Scotland: COVID-19: Information and Guidance for Non-Healthcare Settings (applicable in Scotland).
This article focuses on High Risk Employees and Discrimination Issues and the information contained within it has been collated from a variety of reliable sources to ensure UK Employers are aware of their legal obligations and to assist them to deal with the various implications imposed by the rapid spread of the COVID-19 (Coronavirus) outbreak.
If you are an employer affected by any of the issues being created by the outbreak of Coronavirus and require further assistance and support, call us now on 0800 612 4772 or Contact us via our website.
High risk employees and discrimination issues
Where an employee refuses to attend work because they have a disability which they believe puts them at high risk of serious illness if they catch COVID-19, can an employer dismiss them, or if not, what pay are they entitled to?
People who suffer from certain health conditions are at higher risk of serious illness or death if they contract COVID-19. A requirement imposed by an employer to continue travelling to and attending work, or to not pay or to dismiss them due to their absence in this scenario, could amount to discrimination. In addition, if the reason the employee self-isolates is because of a disability that puts them into a high-risk category such as an auto-immune disease or a respiratory condition, disability discrimination issues may arise.
Indirect discrimination. There may be a case that the employer’s provision, criterion or practice (PCP) of requiring all employees to continue to attend work in a pandemic could be indirectly discriminatory against the employee and those who share the employee’s disability. In such a case, the employer should consider whether the PCP can be justified as a proportionate means of achieving a legitimate aim.
Discrimination arising from disability. Discrimination arising from disability occurs where both:
A treats B unfavourably because of something arising in consequence of B’s disability.
A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
Where an employee self-isolates because of their disability and their employer treats them unfavourably because of this by not paying them or dismissing them for unauthorised absence, the employee could have a potential claim under section 15. The employer’s actions would be because of “something arising in consequence” of the employee’s disability (the employee’s decision to self-isolate). As no comparator is required in respect of a section 15 claim, it will not necessarily be a defence for the employer to argue that it would treat all employees who decide to self-isolate without medical instruction in the same way.
The employer may, however, escape liability if it can show that:
It did not know, and it was not reasonable for it to know, that the employee was disabled; or
Its treatment of the employee was a proportionate means of achieving a legitimate aim of, for example, maintaining staffing levels in its workplace to meet customer demand.
Reasonable adjustments. An employer may be liable for a failure to make reasonable adjustments if it does not facilitate a disabled employee’s request to work from home in a pandemic. However, where the employee’s role is not suitable for remote working, it will not necessarily be a failure to make a reasonable adjustment for the employer to not continue to pay a disabled employee who self-isolates before seeking medical advice. The EAT has held that the purpose of reasonable adjustments is to facilitate a disabled employee to remain in work, or to return to work. The emphasis is therefore on assisting the employee to work, not to not work.
Where an employer decides not to pay a disabled employee who self-isolates, it could potentially be argued that this is hindering the employee from “remaining in work” as few employees can afford to remain employed without pay for the duration of a pandemic. The EAT has, however, commented that the purpose of the legislation is not to treat disabled persons as objects of charity, and these comments were upheld by the Court of Appeal in O’Hanlon v Commissioners for HM Revenue & Customs [2007] IRLR 404.
Where a disabled employee refuses to attend work because of the perceived increased risk because of their disability, medical advice should be sought as soon as possible, from the employee’s GP or occupational health, to confirm or clarify the potential risks and to see what adjustments, if any, should be made to assist the employee in continuing to work. Where the matter is urgent and there is insufficient time to obtain medical advice, employers may wish to err on the side of caution.
How should an employer deal with an employee who has severe anxiety and is afraid to attend work?
An employer should be sympathetic to any concerns staff may have and try to resolve them to protect the health and safety of the employee. For example, if possible, the employer could offer flexible working, or allow the employee to take holiday or unpaid leave.
An employee with severe anxiety may find their condition is exacerbated by travelling or being in public places due to the increased risk of contracting COVID-19. If their anxiety prevents them from attending work in these circumstances, it is possible that they may be regarded as on sick leave and therefore entitled to SSP or contractual sick pay.
Where an employee suffers from severe anxiety, this could amount to a disability under the EqA 2010. Medical advice should be sought as soon as possible from a specialist treating the employee, or occupational health, to determine whether the employee is disabled (if there is no recent diagnosis) and, if so, to see what adjustments, if any, should be made to assist the employee in continuing to work, such as home working or flexible hours.
What about other high-risk employees who choose to self-isolate?
Some employees may fall into a high-risk category in relation to COVID-19 but are not disabled. The World Health Organisation (WHO) has identified that those aged over 60, or who suffer from cardiovascular disease, a respiratory condition, diabetes, an auto immune condition or who are pregnant, are at a higher risk of developing more severe symptoms.
Such employees may wish to self-isolate, even before seeking medical advice. The Acas guidance states that an employer should listen to any concerns staff may have and if they are genuine, the employer must try to resolve them to protect the health and safety of their staff. For example, if possible, the employer could offer flexible working, or allow the employee to take holiday or unpaid leave. Employers should consider whether there are any potential indirect age discrimination issues if they require all employees to be in receipt of either a fit note or written request under regulation 2(1)(b)(i) to be eligible for contractual sick pay.
Is an employer liable where an employee is harassed by other employees or customers because they are from a country with a high incidence of COVID-19?
There have been reported incidents of racial harassment of Asians in relation to COVID-19. Unfortunately, there is the potential that employees may be harassed by colleagues or customers in the workplace because they are perceived to be at a greater risk of having the virus.
For the purposes of the EqA 2010, anything done by an employee in the course of their employment is treated as having also been done by the employer (section 109(1)). The employer can be liable for harassment in these circumstances, whether or not the harassment is done with the employer’s knowledge or approval (section 109(3)).
There is a defence available to an employer if it can show that it took “all reasonable steps” to prevent the employee from doing the discriminatory act or from doing anything of that description (section 109(4)).
Employers would be advised to establish a zero-tolerance approach to harassment in the workplace, which is communicated both internally and externally, ensure all workers are aware of their anti-harassment policy and provide training to all staff on how to recognise harassment and what is inappropriate behaviour.
The position is more complicated when an employee is harassed in the workplace by a third party, such as a customer or visitor. The third-party harassment provisions in the EqA 2010 were repealed in 2013 and the scope of the protection offered by the general harassment provisions of the EqA 2010 have been considerably narrowed by case law since then. To establish liability, the employee would need to show that it was their employer who “created” the intimidating, hostile, degrading, humiliating or offensive environment which is likely to be difficult to prove.
Government Guidance
The COVID-19 pandemic is continually changing and the government advice for employers is being updated as the situation develops. Employers should keep track of the guidance for employers from the following sources:
Health Protection Scotland: COVID-19: Information and Guidance for Non-Healthcare Settings (applicable in Scotland).
We have produced a Coronavirus Emergency Pack for Employers comprising several guidance notes containing detailed answers to the key questions many employers may have.
Please reach out to us if you have questions or concerns by calling us on 0800 612 4772 or Contact Us via our website.
The team at Employment Law Services (ELS) continues to work tirelessly to help support employers to assist them to prevent problems and protect their businesses by providing practical employment law advice. We have collated information from a variety of reliable sources and provide it here to ensure UK Employers are aware of their legal obligations and to assist them to deal with the various implications imposed by the rapid spread of the COVID-19 (Coronavirus) outbreak.
If you are an employer affected by any of the issues being created by the outbreak of Coronavirus and require further assistance and support, call us now on 0800 612 4772 or Contact us via our website.
This article focuses on Statutory Sick Pay (SSP).
Statutory sick pay (SSP) and COVID-19
In what circumstances is SSP payable?
In order to qualify for Statutory sick pay (SSP) an employee must be absent from work due to incapacity. Where an employee has not, at the point they are suspended, either been diagnosed with COVID-19 or exhibited symptoms, then it is unlikely that their absence will meet the definition of day of incapacity in section 151(4), Social Security Contributions and Benefits Act 1992:
“A day on which the employee concerned is, or is deemed in accordance with regulations to be, incapable by reason of some specific disease or bodily or mental disablement of doing work which he can reasonably be expected to do under that contract”.
However, regulation 2, The Statutory Sick Pay (General) Regulations 1982 (SSP Regulations) provides for certain types of absence to be deemed days of incapacity. Regulation 2 was amended by the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 to introduce a new regulation 2(1)(c), with effect from 13 March 2020. Regulation 2(1)(c) provides that a person is deemed incapable of work where he is:
“isolating himself from other people in such a manner as to prevent infection or contamination with coronavirus disease, in accordance with guidance published by Public Health England, NHS National Services Scotland(d) or Public Health Wales(e) and effective on 12th March 2020.”
Regulation 2(1)(c) was introduced to resolve the difficulty in interpreting the rest of regulation 2(1) as including self-isolation following government guidance. For sources of information on the circumstances in which self-isolation is advised. Employers should regularly check the public health guidance on self-isolation as it has changed as the pandemic has developed, and it directly affects who is entitled to SSP during self-isolation. It is possible that different advice could be given in England, Wales and Scotland.
Regulation 2(1)(b) may still be relevant in the case of mandatory quarantine ordered under the Health Protection (Coronavirus) Regulations 2020 (SI 2020/129). Regulation 2(1)(b) provides that a person is deemed incapable of work where they are:
“(i) excluded or abstains from work, or from work of such a kind, pursuant to a request or notice in writing lawfully made under an enactment; or
(ii) otherwise prevented from working pursuant to an enactment,
by reason of it being known or reasonably suspected that he is infected or contaminated by, or has been in contact with a case of, a relevant infection or contamination.”
The introduction of regulation 2(1)(c) means that, in most cases, an employee who is in quarantine or self-isolation will be regarded as being incapable of working for SSP purposes.
We discuss the application of this test in various scenarios which may arise in the COVID-19 outbreak below. The government has announced further forthcoming changes to SSP in light of the COVID-19 outbreak which are discussed below.
What changes to the normal rules on SSP and fit notes have been made in light of COVID-19?
Amendments which have taken effect
As we explain below, following an announcement in the March 2020 Budget, the SSP deemed incapacity rules have been extended to cover those who self‑isolate in accordance with government guidelines.
The government indicated an intention to also extend SSP to those caring for those within the same household who were exhibiting symptoms of COVID-19, but this is not explicitly covered in the new regulation 2(1)(c). The carer would only be covered by the new rule on deemed incapacity if the public health guidance also required them to self-isolate.
Forthcoming changes
As a result of the COVID-19 outbreak, the government has announced that it will bring forward emergency legislation temporarily making statutory sick pay payable from the first day of sickness absence.
The government has also announced that small employers (with fewer than 250 employees) will be reimbursed for any SSP paid to employees in respect of the first 14 days of sickness related to COVID-19.
In the March 2020 Budget, the government also announced that a temporary alternative to the fit note will be introduced in the coming weeks which can be used for the duration of the COVID-19 outbreak. This system will enable people who are advised to self-isolate to obtain a notification via NHS 111 which they can use as evidence for absence from work, where necessary. This notification would meet employers’ need for evidence, whilst taking pressure away from General Practices.
Why did the government introduce new rules on deemed incapacity for SSP purposes?
The deemed incapacity rules in the SSP Regulations were extended to explicitly include employees who are self-isolating following government guidance. This amendment was necessary because the pre-existing deemed incapacity provisions did not clearly cover self-isolation.
It was possible to argue that self-isolation on the basis of a written request from a medical professional to do so fell within regulation 2(1)(b) of the SSP Regulations. However, regulation 2(1)(b) requires that the request to self-isolate is made under an enactment, and it was not clear if the requests being issued by the public health authorities could be said to be made under an enactment.
In addition, those who were self-isolating on the basis of government guidance but without seeking medical advice and obtaining a written request to self-isolate did not meet the definition of deemed incapacity and were not entitled to SSP. The introduction of regulation 2(1)(c) clarifies that anyone who is otherwise eligible for SSP will receive it if they are unable to work because they are following public health guidance to self-isolate.
Absence and pay: no symptoms or diagnosis
Is an employer entitled to send an employee home from work to self-isolate?
If the workplace and the nature of the role allow for remote working then this may provide the employer with an alternative to suspension for the purposes of self-isolation.
There are a range of reasons that an employer may wish to send an employee home to self-isolate. The employer may be acting out of an abundance of caution (in circumstances where government guidance does not suggest that self-isolation is required), the employee may have had contact with someone who has been infected or travelled to a country with a particularly large outbreak (which may fall within the circumstances in which the government recommends self-isolation), or they may be exhibiting symptoms.
If there is an identified risk that an employee may have been exposed to COVID-19, then it is understandable, in light of an employer’s duty to protect the health and safety of other employees, that the employer would wish to keep that employee away from the workplace until the risk has passed. Ultimately, the employer may regard the risk of allowing the employee to remain at work as outweighing any employment law risk which could exist in suspending them.
From an employment law perspective, the employer should consider whether it has an express right to require the employee to stay at home. If not, the question is then whether there is an express or implied right for the employee to attend work in these circumstances. It would be unusual for the employer to have provided the employee with an express right to attend work regardless of circumstances, and there is no general implied term requiring an employer to provide work provided it continues to pay the employee’s wages. It is therefore unlikely to be a breach of implied duties to require an employee to stay at home in these circumstances, assuming there are reasonable and non-discriminatory grounds for concern, and the matter is dealt with appropriately, proportionately and sensitively.
Where the employee falls within the category of individuals who are being advised through public health guidance to self-isolate, or where the employee is exhibiting symptoms, then the employer may be entitled to treat the employee as on sick leave rather than suspension. We discuss this point further below.
Where an employer sends an employee home from work to self-isolate, what pay are they entitled to?
An employee’s right to pay where their employer sends them home from work will depend upon the precise circumstances of that decision. There are a number of different reasons that an employer may require an employee from attending the workplace.
Where the employee is able to continue to work from home then, subject to any contractual provision to the contrary, they will continue to be entitled to their normal rate of pay.
If they are not able to do so then consideration would need to be given to the terms of the contract of employment, although most employment contracts will not provide for this type of scenario.
Scenario 1: Employer suspends for reason not falling within government self-isolation advice
Where an employee is suspended by their employer on health and safety grounds, because of a possible risk of infection which does not fall within the government’s self-isolation advice, it is likely that they have the right to continue to receive full pay on the basis of the employer’s implied duty to pay wages. This assumes that there is no express contractual provision to the contrary, and that the employee is contractually entitled to be provided with work. Some casual employees may have no entitlement to be provided with work and therefore have no entitlement to pay if the employer does not provide them with work due to a fear of possible infection.
Where an employee is willing and able to perform work in accordance with the contract, there is an implied term that the employer has an obligation to pay wages, unless there is a contractual right not to do so. An employer could argue that the employee is not able to work because of the risk that they pose to colleagues. However, this does not, in itself, affect their ability to come into work and perform their duties so it would be risky to withhold pay on this basis. Withholding pay may also discourage employees from identifying a risk that they may have been infected and indirectly lead to an increased risk of infection in the workplace. An employee in these circumstances will not be entitled to SSP because they are not unfit to work and do not fall within the deemed incapacity provisions in regulation 2(1), SSP Regulations.
The former advises self-isolation for those returning from countries with a high incidence of COVID-19 (but links to withdrawn guidance), and the latter advises self-isolation only if the individual suffers from certain symptoms. It is therefore currently unclear what the public health advice on self-isolation is in England.
Scenario 2: Employer suspends for reason falling within government self-isolation advice
Where an employer is considering suspension because an employee falls within the circumstances in which public health advice is to self-isolate then the position in terms of pay may be different. In those circumstances, an employer may direct the employee to return home and seek medical advice. If the employee falls within the category of people who have been advised in government guidance to self-isolate then they will fall within the new deemed incapacity rules for SSP discussed further below. In those circumstances it is likely that the employer could treat them as being on sick leave and pay them SSP (subject to any contractual sick pay policy).
There is a specific statutory right to be paid when medically suspended, but it is currently limited to very narrow circumstances which are unlikely to apply in a pandemic. The grounds on which this right applies could be extended by the Secretary of State, but it does not currently cover infection or suspected infection with COVID-19.
Where an employee refuses to attend work due to fears about coronavirus, what action can the employer take and what pay are they entitled to?
If the employee can work from home, then this may well resolve the issue. If not, the employer would need to consider the current public health advice, the specific reason that the employee is concerned about attending work and whether it would be discriminatory to refuse home working, take disciplinary action, or withhold pay in light of the employee’s refusal.
If there is no discrimination angle, and the public health advice is such that the employee could reasonably be asked to continue to attend work then it is possible that the employee could be investigated for misconduct in terms of their refusal to follow a reasonable management instruction, and their unauthorised absence.
If the absence is unauthorised then the employee would likely not be entitled to pay as they are not willing to attend work.
Where an employee self-isolates following either a direction by a medical professional or government guidance, what pay are they entitled to?
It is assumed for the purposes of this analysis that the employee is not exhibiting symptoms and has not been diagnosed with the disease in question, and that they cannot work from home during their self-isolation.
Where an individual self-isolates in response to either direction by a medical professional or government guidance they will be deemed incapable under the new deemed incapacity rules for SSP. They will therefore be entitled to SSP, or any contractual sick pay which may apply in this scenario.
In what circumstances could holiday be used by workers to cover periods of absence?
The normal rules on taking annual leave under the Working Time Regulations 1998 will continue to apply. Workers may wish to take annual leave as an alternative to scenarios where they would otherwise be on SSP or nil pay. Workers are entitled to take statutory annual leave during sickness absence but may not be compelled by the employer to do so.
Workers who are not on sick leave can be instructed to take statutory annual leave by their employer, provided that they are given the required level of notice.
Absence and pay: symptoms or diagnosis
What pay is an employee entitled to where they have mild respiratory symptoms but no diagnosis of Covid-19?
An employee in these circumstances may be treated as being on sick leave and be paid SSP or contractual sick pay. Although their mild respiratory symptoms may not have ordinarily resulted in them taking sickness absence, the fact that they have symptoms likely brings them within either the normal definition of incapacity, or the deemed incapacity provisions (if they fall within government guidance to self-isolate).
Mandatory isolation
Where an employee is ordered to self-isolate or quarantined under the Health Protection (Coronavirus) Regulations 2020, what pay are they entitled to?
The law on compulsory detention or isolation during a pandemic differs between the constituent parts of the United Kingdom. In relation to the Covid-19 outbreak, the power to compulsorily detain and take other measures in England is contained in the Health Protection (Coronavirus) Regulations 2020 (SI 2020/129)(Coronavirus Regulations).
Where an employee is subject to mandatory quarantine or detention underpinned by a legal obligation to stay away from the workplace then it is likely that they would not be regarded as “able” to work, and so the implied right to wages would not be engaged (see above: Scenario 1: Employer suspends for reason not falling within government self-isolation advice). This assumes that they were unable to continue working remotely from the quarantine location.
However, it is likely that an employee who is forced to abstain from work because of compulsory detention or other restrictions made under an enactment such as the Coronavirus Regulations would be entitled to SSP under the deemed incapacity provisions in regulation 2(1)(b)(ii) of the SSP Regulations.
Where an employee is ordered to self-isolate or quarantined under the Coronavirus Regulations, can they continue to work from home/the quarantine location?
This would depend upon the terms of the order under the Coronavirus Regulations. If they have the facility to work from the location to which they are quarantined, and they are well enough to do so, then this should be possible provided that the restriction imposed upon them under the Coronavirus Regulations does not explicitly or implicitly prevent them from working.
Government Guidance
The COVID-19 pandemic is continually changing and the government advice for employers is being updated as the situation develops. Employers should keep track of the guidance for employers from the following sources:
Health Protection Scotland: COVID-19: Information and Guidance for Non-Healthcare Settings (applicable in Scotland).
The number of confirmed cases of COVID-19 (Coronavirus) in the UK has risen to 590 but the UK Government has not yet banned mass public gatherings or ordered school closures but as it comes under increasing pressure this may change.
The current Government advice is to tell people to stay at home if they have either a high temperature or a new continuous cough. People are being told not to go to a GP surgery, pharmacy or hospital and that they do not need to contact HNS 111 to tell them they are staying at home and no testing will be offered to those who are self-isolating with mild symptoms.
The challenges (Covid-19) Coronavirus are presenting to employers are varied and potentially problematic and with the UK and Scottish Governments looking likely to announce they are stepping up the official response to the “delay stage”, the banning of public gatherings of groups of >500, school closures, etc looks increasingly probable.
We are receiving an increased number of queries from many anxious employers concerned that it is only a matter of time before school closures are imposed and the single biggest question they are asking us is:
What happens if staff need to take time off because schools are closed?
When it comes to staff needing to take time off due to school closures related to Coronavirus, Employers will need to tread very carefully to avoid risk of employment tribunal claims.
In the very first instance, existing legislation already entitles employees to take a reasonable amount of unpaid time off work to look after someone who depends on them in an unexpected emergency (section 57A of ERA 1996), and this would certainly apply to Coronavirus situations where schools are closed and alternative childcare arrangements cannot be made or children become ill and need to self-isolate.
The legislation does not limit the amount of time an employee is entitled to take off, and therefore it is not possible to specify the maximum period of time which is reasonable in any particular circumstances. What is a reasonable amount of time off will depend upon the nature of the incident and the employee’s individual circumstances and employers must not take any disruption or inconvenience caused to the employer’s business into account.
An employee who is refused permission to take time off in accordance with the right or who is subjected to a detriment for taking it (or seeking to take it) may complain to an employment tribunal (sections 48 and 57B, ERA 1996). Furthermore an employee who is dismissed for the reason (or, if more than one, the principal reason) that they took or sought to take time off in accordance with their right will be able to claim unfair dismissal, whether or not they have the necessary qualifying service for an ordinary unfair dismissal claim (sections 99, 108 and 111, ERA 1996).
What About Parental Leave
It is also worth noting that in addition to time off for dependents, birth and adoptive parents with more than one years’ service also have a statutory right to parental leave which allows for them to take up to 18 weeks unpaid leave for each child for the purpose of caring for that child and this applies to children aged up to 18 years of age (regulation 13(1), MPL Regulations). Normally, employees must give 21 days’ notice of their intention to exercise this right and must set out at the outset the start and end dates in their notice.
There are a number of statutory offences in relation to parental leave that, if committed by an employer, would entitle the employee to bring a complaint to an employment tribunal:
Subjecting the employee to a detriment.
Dismissing the employee.
Unreasonably postponing a requested period of parental leave.
Preventing or attempting to prevent the taking of parental leave.
In summary, each case should be assessed on the facts and employers should avoid knee-jerk reactions. The issues created by an outbreak of coronavirus are not normal and therefore the normal approach to absence and time off for dependents don’t apply.
The details noted above set out the legal minimum obligations for Employers. Contracts of employment should always be checked to determine whether they provide for more favourable arrangements than the minimum obligations set out in the relevant legislation.
Despite the UK and Scottish Governments not imposing any bans on mass public gatherings, both the Scottish and English Football Associations have taken the lead and confirmed today that their respective leagues have been postponed and UEFA have suspended both the Champions League and Europa League.
In Scotland, the remainder of the Scottish football season, including grassroots fixtures, has been postponed indefinitely and in England all elite fixtures have been postponed until at least 3 April, but Football is not alone in making this decision. Various other organisations have also cancelled public events including the Golf’s Player Championship, the England Tour of Sri Lanka as too have numerous other events.
At the time of writing this article it is unclear whether the official Government advice will change and extend to school closures and/or an official ban on mass public gatherings.
Advice and Support
If you are an employer who requires assistance with any of the issues raised in this blog call us now on 0800 612 4772 or Contact us via our website.
As we have reported previously, the Coronavirus continues to spread rapidly in the UK with the latest number of confirmed cases in the UK now numbering 321, of which 298 are still active. As the outbreak continues to spread so too will the implications for Employers so we are offering a FREE Homeworking policy to anyone who wants it. Simply click the image below to download your FREE Homeowrking Policy now.
For more information on the new Emergency Legislation introduced to allow the payment of statutory sick pay from the very first day an employee is sick instead of four days under the current rules AND how to cope with the various other implications Coronavirus may create for Employers, check out our other articles:
Today during PM’s Questions, the Prime Minister said people who self-isolate are helping to protect others from the virus and should not be “penalised for doing the right thing”. He went on to say, “I can today announce that the health secretary will bring forward, as part of our emergency coronavirus legislation, measures to allow the payment of statutory sick pay from the very first day you are sick instead of four days under the current rules. And I think that’s the right way forward. Nobody should be penalised for doing the right thing.”
The aim of this emergency legislation is to ensure people with coronavirus do not feel financial pressure to come into work and risk spreading the disease and should therefore only apply to those who have coronavirus opposed to those who choose to self-isolate as a precaution, but this is still unclear.
Although the full details of the emergency legislation and the changes have not yet been revealed, these will no doubt follow in the coming days but we understand at this stage that the change will only be temporary during the period of the coronavirus outbreak, but in the meantime it may effectively apply to all illnesses.
Quite obviously there will be immediate implications for Employers, not least an increase in sick pay costs (employers have been unable to reclaim SSP since April 2014 when the Percentage Threshold Scheme (PTS) was scrapped) but there are potential future implications too. There is every likelihood that unions will argue these new rules should apply to all illnesses, all the time, not just because of the coronavirus outbreak and it could lead to renewed calls for a full review of the current SSP scheme which unions have often said doesn’t protect workers who don’t earn enough to qualify for SSP and doesn’t pay enough for those that do.
This was evidenced in comments made by Frances O’Grady, general secretary of the TUC following today’s government announcement when she said it was ““an important step but not enough.” She went on to say, “Two million workers still don’t earn enough to qualify for statutory sick pay. They can’t afford not to work. And statutory sick pay still isn’t enough to live on.”
Today in the UK we have seen the biggest day-on-day increase in coronavirus cases, bringing the total number to 87 and all indications are these numbers will continue to rise putting more pressure on businesses across the UK, and beyond.
When business continuity is put at risk by a crisis and/or people related threats like the seemingly rapid spread of the coronavirus (COVID-19), the HR issues this creates for Employers can significantly compound matters.
The first priority for Employers is to consider the health and safety of employees.
During a pandemic or crisis, a business must keep itself and employees informed about related health risks.
Health and Safety Actions could include:
Having a system or means to keep abreast of government advice on any current issue, as it develops. This can be an internal system or one that has been established via a third party such as a law firm or risk management business.
Keeping everyone updated on actions being taken to reduce risks of exposure in the workplace. Employers must ensure that:
contact data (email, work telephone, personal telephone and address) held within any such system is reviewed and updated on at least an annual basis to account for the common regular change in personnel and personal data; and
there is an emergency communication system in place in the event that normal means of communication cannot be accessed or utilised. An example of this is where email functionality is not available, and a business needs to turn to personal telephone contact details.
Fundamentally, in the event of a pandemic, the Employer must also take steps to ensure that there is good hygiene in the workplace (based on the facts and science of the pandemic itself) and that working practices do not pose undue risks to employees. Actions could include:
Reviewing systems of hygiene to ensure that they provide appropriate protection. In the case of influenza pandemic for instance, staff need to be encouraged to regularly wash their hands with soap, to carry and use tissues and sanitising hand gel. Practically, training or communications to all staff about why these practices are required often boosts compliance beyond a simple mandate about doing so.
Increasing the cleaning of hard surfaces in the workplace, particularly phones and door handles.
Carrying out a cost/benefit analysis for offering flu injections (or any similar preventative measure depending on the pandemic) to the workforce. Communicating the potential benefits of the preventative measure for the employees, their families but also those who may be unable to have this (for example, those who cannot have it due to allergies) may help to increase the uptake.
Carrying out a risk assessment to identify any higher risk groups, such as those who have a high level of contact with each other.
HR Issues for Employers
At the same time the health and safety issues are being addressed, employers also need to be prepared for the possible HR implications that may arise as a result of the spread of coronavirus (COVID-19).
Employee Absence and Sick Pay
The key thing to note is that the employer’s normal sick leave and pay entitlements still apply even if someone has coronavirus. As always, an Employer’s obligations in respect sick pay depends on why the employee is absent.
Employee with Coronavirus
If employees are unwell with coronavirus, then your normal sick pay policies and procedures should apply. Employees who believe they have coronavirus may be instructed by their GP to self-isolate for 14 days and so may not be able to produce a Fit Note in the usual way. Employers should take this into consideration and consider relaxing their normal sickness policies in these circumstances.
Self-Isolation or Quarantine
The advice from Government at the time of writing this article is that people who have visited the identified “high risk areas” must stay at home and self-quarantine for 14 days.
There is no legal (statutory) obligation to pay employees who are not sick but cannot work because they have been told by a medical expert to self-isolate, have had to go into quarantine or are abroad in an affected area and are not allowed to travel back to the UK but Acas recommends that it is good practice for employers to treat these scenarios as sick leave and follow their normal sick pay policy, or agree for the time to be taken as holiday.
Employers who choose not to do this could exacerbate the problem because there’s a risk an employee in this situation could come to work because they need to get paid and this could then spread the virus, if they have it, creating even more problems for Employers.
Time Off for Dependants
Under current UK Employment Law, employees are already entitled to unpaid time off to look after someone who depends on them in an unexpected event or emergency and this would apply to coronavirus situations where an employee’s dependant is sick or needs to go into isolation or hospital, or if schools are closed and they need to look after their children.
Normally, the amount of time off an employer would consider reasonable in unexpected events or emergencies would be two or three days but the time allowed must be reasonable for the situation which, in the case of coronavirus and self-isolation, may need to be much longer. If employees need to stay off to look after dependants or ask to stay away from work because they are generally concerned about coronavirus, then they could be offered:
home working
holiday;
unpaid leave; or
Flexible working
Employer Imposed Absence
Where an employee is suspended by their employer on health and safety grounds, because of a possible risk of infection, it is likely that they have the right to continue to receive full pay (in the absence of a contractual provision to the contrary). Where an employee is willing and able to perform work in accordance with the contract, there is an implied term that the employer has an obligation to pay wages, unless there is a contractual right not to do so.
If you inform employees that they must stay away from work as a general ‘precaution’ then it is recommended that those employees should be paid their normal salary, but the Government is currently encouraging businesses and schools to remain open and operational so suspension of employees for medical reasons may not be an issue for Employers.
Common-sense and Flexibly
Each case should be assessed on the facts and employers should avoid knee-jerk reactions. The issues created by an outbreak of coronavirus are not normal and therefore the normal approach to absence don’t apply for coronavirus related absences. Employers should also exercise caution and think carefully before using coronavirus related absence to trigger warnings under absence management policies.
Advice and Support
If you are an employer who requires assistance with any of the issues raised in this blog call us now on 0800 612 4772 or Contact us via our website.
Advice on Settlement Agreements
Employment Tribunal Representation
Covid-19 Employment Claims
