Following our confirmation yesterday about the Government’s announcement of the Coronavirus Job Retention Scheme, details were limited. We now know how Employers can access the Scheme.
Furloughed Workers Status
We confirmed yesterday the Chancellor’s announcement of the creation of the Coronavirus Job Retention Scheme, intended to allow UK Employers to apply for grants to cover 80% of an employee’s salary up to a maximum of £2,500 per month, but details of how the scheme would operate were still a work in progress.
To access support from the Coronavirus Job Retention Scheme, Employers will first need to designate employees as “furloughed workers”. It’s important to note that currently, the status of “furloughed workers” has no legal definition and is merely a general description used to describe employees who would otherwise have been laid off or made redundant.
How the Coronavirus Job Retention Scheme Will Work
For those Employers who may have already imposed temporary layoffs either having exercised an express Term in the contract of employment allowing them to do so, or by first seeking the consent of the affected employees, the process for re-designating laid off employees should be relatively straightforward but for Employers who have not yet laid off employees, the process will differ slightly.
Employment Law Services (ELS) can advise Employers on the appropriate steps they need to take and can provide support with drafting the necessary letters Employers will need to ensure they meet their legal obligations and re-designate employees correctly on a fixed fee basis. Request a call back and we will contact you to discuss your specific requirements.
Once employees have been re-designated as “furloughed workers”, Employers will need to submit information to HMRC about the employees that have been furloughed and their earnings through a new online portal.
Note: At the time of writing this article HMRC have not yet set out the details of how this portal or the information required but this will undoubtedly follow in the coming days. Keep checking our website and/or follow us on Facebook and Twitter for further updates.
Employers should note that to qualify for this scheme, employees who would otherwise have been laid off without pay or made redundant would need to be kept on the payroll and the employees should not undertake work for their Employer while they are furloughed.
The government intends to run the Coronavirus Job Retention Scheme for at least 3 months from 1 March 2020 but will extend if necessary.
Full details of how the scheme will be managed and monitored have not yet been released but once we have more information we’ll update you so bookmark our site and keep checking for updates.
Other financial support available to UK Employers includes:
deferring VAT and Income Tax payments
a Statutory Sick Pay relief package for SMEs
a 12-month business rates holiday for all retail, hospitality and leisure businesses in England
small business grant funding of £10,000 for all business in receipt of small business rate relief or rural rate relief
grant funding of £25,000 for retail, hospitality and leisure businesses with property with a rateable value between £15,000 and £51,000
the Coronavirus Business Interruption Loan Scheme offering loans of up to £5 million for SMEs through the British Business Bank
a new lending facility from the Bank of England to help support liquidity among larger firms, helping them bridge coronavirus disruption to their cash flows through loans
the HMRC Time To Pay Scheme
Support for Employers
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.
It would appear that the fiscal rule book has been thrown out the window given the unprecedented impact the Coronavirus crisis is having, with this latest announcement by the Chancellor being the third significant promise of financial support in as many days.
Significant announcements from the Prime Minister and Chancellor in today’s Coronavirus Press Conference.
One of the key measures announced by the Chancellor was the creation of the Coronavirus Job Retention Scheme, intended to allow UK Employers to apply for grants to cover 80% of an employee’s salary up to a maximum of £2,500 per month.
In making his announcement the Chancellor made an appeal directly to employers to stand by their workers during the coronavirus crisis, saying; “Let me speak directly to businesses: I know it’s incredibly difficult out there – we in government are doing everything we can to support you. The government is doing its best to stand behind you and I’m asking you to do your best to stand behind our workers.”
Full details of these latest measures and how they will actually work have not yet been revealed but will no doubt follow in the coming days, however we understand that Employers will be able to apply for these grants via HMRC.
Other measures announced included:
Cafes, pubs and restaurants must close from Friday night, except for take-away food, to tackle coronavirus.
All the UK’s nightclubs, theatres, cinemas, gyms and leisure centres have also been told to close “as soon as they reasonably can”.
The Prime Minister said the situation would be reviewed each month.
Bookmark our blog and/or subscribe to our newsletter for regular updates.
Additional Advice and Support
If you are an employer who requires assistance with any of the issues raised here, call us now on 0800 612 4772 or Contact us via our website.
The UK government have today launched a new online isolation note service to enable people with symptoms of coronavirus or those living with someone who has symptoms, and so cannot work, to provide their employers with evidence they have been advised to self-isolate.
The government says the notes can be accessed through the NHS website and NHS 111 online and we can confirm that the service is now live and working.
According to Matt Hancock, the Health & Social Care Secretary, if an employee does not have an email address, they can have the note sent to a trusted family member or friend, or directly to their employer. The service can also be used to generate an isolation note on behalf of someone else.
The rapid spread of COVID-19, aka Coronavirus, continues to have an immediate and adverse impact on businesses throughout the UK and after yesterday’s announcement that all UK Schools will close from this coming Friday and more restrictions to free movement of people likely to follow in the coming days and weeks, it is unlikely that the pressure on Employers will let up any time soon.
The Impact on UK Employers
Many Employers have seen demand for their products and/or services disappear almost entirely over a very short period of time and as the Coronavirus outbreak continues to spread rapidly and government-imposed restrictions continue to escalate, many Employers are quickly finding that they may no longer be able to provide work for all of their employees.
During these difficult and challenging times it is important to note that this unprecedented crisis doesn’t magically overwrite current employment legislation and provide employers with any special powers to circumvent existing employment laws, nor does it provide a viable defence in any subsequent employment tribunal claims that may follow in the event of knee-jerk reactions by Employers.
Emergency Legislation
The only emergency legislation that has been passed was the amendment to regulation 2, The Statutory Sick Pay (General) Regulations 1982 (SSP Regulations) which 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.”
To date, no other emergency legislation has been passed that would allow employers to be “flexible” with the terms and conditions of their employees or current employment legislation and therefore the normal rules still apply, unless or until further emergency legislation is introduced.
What can Employers do to mitigate the risk?
Redundancies are usually the last resort for Employers struggling to provide work for all of their employees but before pushing the redundancy button, Employers should explore ways of avoiding compulsory redundancies to minimise the impact on employees. Measures which may assist in avoiding compulsory redundancies include:
Asking employees to take paid holidays. Employers can require employees to take holidays at specific times provided they serve them the necessary notice (twice as long as the holiday being taken) unless the contract of employment provides for shorter notice or the employee agrees to a shorter period of notice.
Asking employees to voluntarily reduce their working hours. Any agreement to a variation to working hours and pay would need to be set out in writing. However, if employees don’t volunteer or consent to a proposal to reduce their working hours, and you are seeking to vary the working hours of 20 or more employees, you will need to undertake collective consultation either with a recognised trade union or elected employee representatives.
Introduce short time working or temporary layoffs. Where there is an express term in the contract of employment or an implied term by virtue of custom and practice, Employers can introduce short time working and/or temporary layoffs by serving the necessary notice. Some short time working, and temporary layoff clauses set out specific notice obligations and some simply require as much notice as is reasonably practicable so check your contracts to ensure you meet your contractual obligations.
What if there is no express or implied term in the contract of employment?
In the absence of an express or implied term in the contract of employment providing for short time working and/or temporary layoffs, Employers must tread carefully. Unilaterally imposing either measure could constitute a breach of contract and lead to claims of unlawful deduction of wages or breach of contract and constructive dismissal.
If you have already considered but ruled out asking employees to take holidays, you could propose a variation to their existing contracts of employment in order to introduce a short time working and temporary layoff provision, but this would need to be set out in writing and consent would need to be obtained from the employees. However, if employees don’t volunteer or consent to a proposal to reduce their working hours, and you are seeking to vary the working hours of 20 or more employees, you will need to undertake collective consultation either with a recognised trade union or elected employee representatives.
Redundancies. If after exploring all other options redundancies is the only way forward, Employers should first check the contracts of any bank workers, agency workers or contractors to determine whether these can be terminated. If this doesn’t alleviate the problem, then employee redundancies may be the only option and you will need to commence formal redundancy procedures which will require consultation. If the number of redundancies is 20 or more within 90 days, you will need to undertake collective consultation either with a recognised trade union or elected employee representatives.
Support for Employers
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.
As the restrictions imposed by Government as a result of the rapid spread of the COVID-19 (Coronavirus) outbreak increase, many Employers are reviewing their business continuity plans to ensure they can continue to operate. This article focuses on Homeworking and Travel and how Employers can manage the implications the Coronavirus may create.
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.
Homeworking
Are we entitled to require an employee to work from home?
If there is already an established requirement to work from home where appropriate or where instructed to do so (or in the case of a business continuity issue such as a pandemic), then there is unlikely to be an issue in applying that obligation in an effort to contain the spread of COVID-19.
If not, imposing home working would arguably constitute a variation of the contract requiring employee consent. However, where an employee is faced with either being on SSP or nil pay as an alternative, they may well be willing to consent to working from home as a way of preserving pay. There are alternative methods of changing terms and conditions of employment, but in the circumstances and given the time sensitive nature of the COVID-19 outbreak, employee consent is likely to be the most realistic means of validly imposing a home working requirement where none previously existed.
Where home working is being newly introduced, or expanded, the employer should ensure that the health and safety implications have been considered and that the necessary infrastructure is in place.
Can we refuse to allow an employee to work from home if they will also be looking after children who have been sent home from school or nursery?
In normal circumstances, it would not be appropriate for an employee to work from home while also providing childcare. However, as the COVID-19 outbreak escalates, employers may need to take a pragmatic approach. If all schools and nurseries close, the majority of parents in the workplace will face this issue and putting a blanket ban on working from home while also looking after children may preclude a large proportion of the workforce from performing any duties. In these unprecedented circumstances, employers may be prepared to take a more relaxed and flexible approach to homeworking and allow employees to work around their childcare responsibilities.
Employees with younger children who require constant attention may not be able to work at all while responsible for looking after those children. However, they may be able to split the childcare with the other parent, so that both parents are able to, at least, continue working part-time.
Employees in these circumstances may assert their right to time off to care for a dependant. Time off in these circumstances is unpaid, unless there is a contractual right to pay. Given that school closures could last a relatively long time, it is likely that many employees who consider that they can undertake some work while providing childcare would prefer to do so (rather than assert their statutory right to time off) if the employer is willing to allow them to work flexibly.
Are there any home-working health and safety issues we should consider?
Yes. An employer is responsible for an employee’s welfare, health and safety, “so far as is reasonably practicable” (section 2(1), Health and Safety at Work etc Act 1974). Employers must conduct a suitable and sufficient risk assessment of all the work activities carried out by their employees, including homeworkers, to identify hazards and assess the degree of risk (regulation 3, Management of Health and Safety at Work Regulations 1999 (SI 1999/3242)).
Travel
Can an employer require an employee to undertake work-related travel overseas?
This depends upon the nature of the FCO advice on travel to the areas of the country in question. It would not, ordinarily, be appropriate to continue to require work travel to areas which the FCO has advised against travelling to. In most cases it would not be a reasonable request to require travel to such areas, and it may breach the employer’s health and safety obligations, and the obligation of trust and confidence, to impose such a requirement on employees. It could even result in a personal injury claim should the employee contract the illness while undertaking work-related travel in these circumstances.
However, there will be some roles (for example, certain journalists) where the nature of the job is such that the employee can be reasonably expected to travel to areas which are dangerous in some way. In those, relatively unusual, cases where travelling to the area where COVID-19 is particularly prevalent is part of the role, the employer would still need to consider its health and safety obligations and what measures should be put in place to minimise the risk. The employer should also consider whether the employee in question has a pre-existing health condition, or other characteristic, which puts them at higher risk of contracting COVID-19 and developing a serious illness.
What is the position where an employee is stranded overseas on a work trip?
If an employee is unable to travel home because they have contracted COVID-19 and are either not permitted to travel or too unwell to do so, the employer could treat them as being on sick leave in terms of pay, although most employers would likely continue to pay full pay in these circumstances. The employer would also need to consider the additional expenses incurred by the employee in terms of accommodation and subsistence and ensure that assistance is provided to make arrangements, and that the employee is reimbursed for such expenses. If medical assistance is required, the employer should ensure that the employee is able to access its business travel insurance policy, and that such other assistance as may be appropriate is provided.
If the employee is unable to travel home because they are subject to lockdown or precautionary isolation and unable to access transport home, similar considerations will apply. However, the employee should continue to receive full pay on the basis that they are only in that situation because their employer sent them overseas.
If there is a breakdown in the pre-arranged transport home (for example, due to flight cancellations), the employer should explore other options to repatriate the employee. The employer remains bound by its implied duties towards the employee, and it is likely that its ongoing responsibilities towards the employee would require the employer to make reasonable efforts to find a way for the employee to return home, at the employer’s expense. The contractual position and any policy on overseas travel should also be considered.
What is the position where an employee is stranded overseas following a holiday?
Where the employee is unable to travel home because they have contracted COVID-19 and are either not permitted to travel or too unwell to do so, the employer should treat them as being on sick leave in terms of pay. The employee is entitled to take annual leave if they prefer to do so, but they cannot be compelled to do so.
Where the employee is unable to travel home because they are subject to lockdown or precautionary isolation and unable to access transport, their entitlement to pay will depend upon the precise circumstances.
Can an employee still be required to travel to a work event within the UK?
This will depend upon the current government and public health advice on travelling and attending events within the UK, and the nature of any objections from the particular employee. If there is no public health advice against taking this action then, in principle, employers are entitled to continue to impose such a requirement (assuming the employer is otherwise entitled to require the employee to do so).
However, the employer would need to consider whether the employee falls into one of the high-risk categories. If so, the employer should consider whether it would be putting the employee’s health and safety at risk by asking them to travel to and attend the event. It should also consider whether the employee has any rights under the EqA 2010 if the reason that they are at high-risk is linked to a protected characteristic. For example, an employee who suffers from a disability which suppresses their immune system or affects their respiratory system may claim that it is indirect discrimination or discrimination arising from disability to ask them to travel in these circumstances.
The employer should consider whether attendance at the event is really necessary, even if the employee does not fall into a high-risk category, given that many employees will have understandable anxiety about long journeys on public transport and attending large events.
Can an employer restrict employees’ travel during non-working time?
Employers could consider instructing employees not to travel to areas where the government advice is to avoid travel in light of the coronavirus outbreak (see GOV.UK: Travel advice: coronavirus (COVID-19). However it is questionable whether this could be regarded as a reasonable management instruction given that it dictates what an employee can do with their leisure time, rather than how to do their job.
The employer could also consider advising the workforce that anyone who does travel to such an area will be required to remain at home on their return, and that contractual pay (including contractual sick pay) will not be payable in respect of such self-isolation. The employer would need to consider whether taking that approach amounts to a breach of contract or unilateral change in terms and conditions.
If the employer does issue any directions in terms of non-work-related travel, it should consider whether any requirements or conditions on sick pay are indirectly discriminatory. For example, if the employer attempts to restrict travel to certain countries, employees who are nationals of those countries could, potentially, claim indirect discrimination on the basis that the employer’s new policy disproportionately affects them. It is likely that any such claim would come down to the proportionality of the employer’s response. Also, if the employer attempted to revoke the employee’s annual leave to prevent them from travelling, similar questions would arise. Revoking annual leave may not be a realistic response in any event given the notice requirements in the Working Time Regulations 1998 (SI 1998/1833).
Even where the employer attempts to impose a new travel restriction of this sort, it is questionable whether the employee commits a disciplinary offence in contravening it, given that it is unlikely to be regarded as reasonable to restrict employees’ leisure activities.
Where an employee returns from a holiday in a high-risk area, can they be required to stay away from work?
It is likely that an employer could require employees who return from a high-risk area to remain at home.
Whether they are entitled to SSP or full pay will depend upon whether they fall within the guidance from the relevant public health authority on self-isolation. SSP is only payable under the deemed incapacity provisions for self-isolation where the employee is following public health advice from Public Health England, NHS National Service Scotland or Public Health Wales.
It is currently unclear whether those returning from high-risk areas are being advised to self-isolate.
If the current advice is to self-isolate upon return from the country in question, then the employee could be treated as sick and paid SSP (subject to contractual sick pay). If the current advice on self-isolation does not cover return from the country in question then it is likely that the employer could require the employee to remain at home, but they would remain entitled to full pay.
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).
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.
Advice on Settlement Agreements Employees
Advice on Settlement Agreements Employers
