Employment Law Advice Archives | Employment Law Services (ELS) LTD

Everything Employers Need to Know About Redundancy

Posted on 30 March 202231 May 2023 by @deliver_els

The legal obligations UK employers face when considering making redundancies and the significant legal implications of getting it wrong was brought into sharp focus recently in the P&O Ferries case. We look at the various steps UK employers need to take to make redundancies fairly and legally.

The shocking decision by P&O to dismiss 800 UK workers with immediate effect last week sent shockwaves across the UK, with the media and politicians of all parties describing P&O’s actions as “shameful” and “illegal”.

P&O have since stated that they had no choice and were forced to act swiftly in the way that they did, to protect their business and whilst swift action may have been necessary, the fact remains that they completely disregarded redundancy employment laws, not least their legal duty to collectively consult and to notify the Secretary of State of the proposed redundancies at least 45 days before the first dismissal took effect.

The consequences of P&O’s actions could mean that P&O face claims at the employment tribunal and costly awards for unfair dismissal, in addition to Protective Awards for failing to consult, on a massive scale.

What is Redundancy?

The statutory definition of “redundancy” encompasses three types of situations: business closure, workplace closure, and reduction of workforce. The dismissal of an employee will be by reason of redundancy if it is “wholly or mainly attributable to” the employer.

There are a variety of circumstances that can give rise to a redundancy situation, including:

A diminished need for employees to do work of a particular kind.
Changes to terms and conditions where more than 20 employees are affected, and dismissal is a possibility.
Reduction in the numbers of employees doing a particular role.
Removal of a role or group of roles.
Closure of a department, site or entire business.

It is important that employers don’t confuse legitimate redundancy circumstances with other issues which do not give rise to a redundancy situation.

Examples of situations that do not give rise to redundancy include:

Issues of performance, conduct.
Where an external company could do the work better or more cheaply.
The same work could be done under different terms and conditions e.g., less qualified.
Where the employee is required to do additional work, but it remains “work of the same particular kind” and they refuse to do that.
Transfers of employment.

What Every Employer Needs to Know About Redundancies

Many employers find dealing with redundancy to be an unnerving prospect and affected employees often find it very stressful, but to avoid potential problems employers must follow the correct procedures and apply them fairly to avoid facing potentially costly claims at the employment tribunal.

To undertake a redundancy exercise, employers need to know:

What “redundancy” means.
How to deal fairly with individuals being considered for redundancy to minimise claims for unfair dismissal.
What the alternatives to redundancy are, including lay off and short time working.
How to determine an employee’s entitlement to a statutory or contractual redundancy payment.
When they must inform and consult collectively (with trade unions or employee representatives) about redundancy.

It is important that employers carefully consider their situation before deciding to progress with redundancies. Key points to consider include:

What are your reasons for making a particular person/group/role redundant?

Are these reasons likely to impact the business permanently or are they temporary?

How many redundancies might be necessary?

How quickly do these issues need to be addressed?

How much would redundancies cost?

What alternatives might be possible?

Employers have a legal obligation to consider how they might avoid compulsory redundancies. Some of the alternatives they should consider include:

Short time working and/or temporary layoffs.
Voluntary redundancy.
Temporary reduction in pay or hours.
Permanent reduction in pay or hours.
Redeploying to alternative roles and providing retraining (if reasonable).
Dismissing short service employees (where no risk and T&Cs allow).
Reducing/removing benefits.
Stopping/limiting overtime.

Issues to Address in a Redundancy Situation

Establish there is a genuine redundancy situation.
Consider pool and criteria for selection; list any alternative vacancies.
Consult with the affected employees, collectively if making 20+ redundant.
Notify the Secretary of State if making 20 or more redundancies.
Score affected employees using established criteria.
Consult individually with those provisionally selected for redundancy.
Follow up on feedback from consultations.
Meet with affected employees to confirm the outcome.

Other considerations include:

Is there a job that would be a suitable alternative within any associated business or alternative sites?
Does ‘Bumping’ apply? This is where an employee not previously at risk is put at risk to ‘save’ other employees.
Are any affected employees pregnant?
Are any affected employees on maternity leave?
Are any senior roles affected?

Employers will need to proceed with caution if any of the above scenarios apply.

Redundancy Pool & Criteria for Selection

Identify the ‘pool’ for selection

Make selected pool wider, not narrower.
Identify appropriate skill set for what is needed in the future.
Apply selection criteria.

Selection Criteria

Evidence based.
Non-discriminatory.

Notifying the Secretary of State

Employers must notify the Secretary of State that it is planning to make collective redundancies:

At least 30 days before the first dismissal takes effect (in other words, the date on which notice is to expire or employment is to end) where the employer proposes to dismiss 20 to 99 employees within a 90-day period, or
At least 45 days before the first dismissal takes effect where the employer proposes to dismiss 100 or more employees within a 90-day period.
The notification must be in writing (either by letter or on a form HR1) and a copy must be provided to the employee representatives. The employees cannot be given notice of dismissal.

Employee Consultation

Must be meaningful, with a view to getting agreement, not a means to an end.
Includes those off on long term sick leave, family friendly leave, fixed term (funding).
With union or collective consultation body (if authorised to consult on such matters).
Usually initial group/then individual.
Letters at each stage and 48 hours’ notice between meeting and the right to be accompanied.
Minutes should be taken at each meeting.

Statutory Redundancy Pay

A statutory redundancy payment is payable to employees with 2+ years’ service.

Age weighting: half a week’s pay for each full year under 22, one week’s pay for each full year between 22 and under 41, one and half week’s pay for each full year 41 or over.
Length of service is capped at 20 years.
Max gross salary £544.
Max £16,320.
Notice Pay is the greater of contractual or statutory.
Statutory notice is one week for each complete year of service after one months’ service up to a maximum 12 weeks’ notice.

Options for notice period:

Work out notice.
Paid in lieu of notice (PILON).
Garden leave.

Where Most Employers Get Redundancies Wrong

There are many steps involved in making lawful redundancies that employers can miss, some of the more common being the following:

Not establishing the contractual position.
Not identifying the right pool.
Not using any/appropriate selection criteria.
Not consulting properly (individually or collectively).

The Implications of getting it wrong can include employment tribunal claims for:

Unfair dismissal
Not genuine redundancy (the real reason for dismissal).
Unfair process.
Unfair selection.
Unfair scoring.

The maximum compensatory award for unfair dismissal is currently £88,519 but where discrimination has been a factor, awards for compensation are unlimited.

A Summary of the Redundancy Process

Where less than 20 employees are to be made redundant at one establishment within 90 days, the approach can differ:

No risk of discrimination or under 2 years’ service:

If under 2 years’ service, and no risk of discrimination, a shorter process can be followed if the contract/handbook allow that.
No entitlement to redundancy pay, just notice pay.

Risk of discrimination or over 2 years’ service:

A minimum of three meetings (at risk, how can we avoid, if no ideas, dismissal).
If pools of candidates, objective criteria will need to be used relating to that particular role.
Scoring needs to be fairly done.
Right of appeal.

Where 20 or more employees to be made redundant at one establishment within 90 days:

Need to collectively consult with appropriate representatives.
Representatives are recognised trade union or employee representatives elected through a ballot.
Must provide prescribed information via HR1 to BEIS.
Must consult for at least 30 days before the first dismissal or for 100 days if more than 100 employees.
Right of appeal.
Protective award for a failure to consult = 90 days gross pay.

Conclusion

A redundancy dismissal is likely to be unfair unless the employer:

Establishes there is a genuine redundancy situation.
Identifies an appropriate pool for selection.
Consults with individuals in the pool.
Applies objective selection criteria to those in the pool.
Considers suitable alternative employment where appropriate, subject to a trial period.

Do You Need Assistance with a Redundancy Issue?

The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers on their legal obligations to ensure compliance. If you have any queries about your legal obligations you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.

Employment Law – What to Expect in 2022

Posted on 7 January 20228 June 2023 by @deliver_els

As we near the end of the first week back after the festive period, we take a look at what employers can expect in the area of Employment Law in 2022 including, the updated data protection and employment practices guidance expected from the Information Commissioner’s Office, a new duty on employers to prevent sexual harassment, and flexible or hybrid working.

Seasonal Worker visa route extended to 2024

On 24 December 2021, the Home Office and Department for Environment, Food and Rural Affairs (DEFRA) announced the extension of the Seasonal Worker visa route to the end of 2024. The visa route enables foreign workers to come to the UK to work in the horticulture sector for up to six months to pick both edible and ornamental crops. Some changes will be made to the scheme in response to the seasonal workers pilot 2019 review, including the requirement for companies to pay workers a minimum wage to improve conditions. At least 30,000 visas will be available in 2022, but the number of available visas will begin to taper off in 2023. The government will also require the sector to do more to attract UK workers, such as offering training, career options and wage increases.

Flexible working

The pandemic shifted and centralised the issue of flexible working for many employers and workers and, although perhaps temporary, in periods of fewer restrictions many employees returned to offices on a hybrid basis. A government consultation on making flexible working the “default position” ran from September to December 2021 and set out five proposals including making flexible working a day one right. Note that the government’s proposals do not introduce an automatic right for employees to work flexibly. Rather, the proposals include a number of measures to broaden the scope of the right, while retaining the basic system involving a conversation between employer and employee about how to balance work requirements and individual needs, potentially changing the statutory business reasons for refusing a flexible working request. As the consultation closed on 1 December 2021, it is unlikely there will be a response from the government until the latter half of 2022.

Some developing themes which employers may continue to face in 2022 include requests from employees to work flexibly abroad and the impact on wellbeing of continued working from home. Following research about the significant amount of hidden overtime while working from home during the pandemic, there have also been calls for the government to introduce a “right to disconnect”. This has recently been brought into effect in some European countries and is being discussed by the Scottish Government in relation to their own employees. It was also mentioned in a briefing paper on hybrid working published by the House of Commons Library in November 2021.

Vaccinations at work

On 1 April 2022, following a consultation, regulations come into force which will make vaccination against COVID-19 a requirement for health and social care workers in a face-to-face role. It remains to be seen how employers in this sector will deal with unvaccinated employees, whether consultation with unvaccinated employees is necessary where there are large-scale dismissals and whether redeployment will be possible. Employers in other sectors, who have a duty to maintain a safe workplace, have been encouraging staff to get vaccinated. Absent further government requirements on mandatory vaccinations, there would be risks for employers who may want to make vaccination a requirement for new or existing staff. The key legal problem will be the risk of potential unfair dismissal, and potential discrimination claims if employees are dismissed for refusing to be vaccinated and the employer is unable to justify dismissal as a proportionate means of achieving a legitimate aim.

Review of gender pay gap reporting regulations

By April 2022, the government must review the gender pay gap regulations as they are obliged to do so within five years of the regulations coming into force (regulation 16(3), Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (SI (2017/172)). The purpose of this review will be to assess the extent to which the reporting requirement achieved the objectives of the regulations, whether the objectives remain appropriate and whether any unnecessary burden is placed on employers.

New duty to prevent sexual harassment

On 21 July 2021, the government published its response to the 2019 consultation on workplace sexual harassment. The response confirmed a new duty for employers to prevent sexual and third-party harassment, which is likely to include a defence where an employer has taken “all reasonable steps” to prevent the harassment. The government will also consider the proposal to extend the time limits for claims under the Equality Act 2010 but has not yet committed to making any changes. The duty will come into force when Parliamentary time allows.

Data protection

Several data protection developments are likely to impact employment practitioners in 2022. The Department for Culture, Media and Sport (DCMS) proposed data protection reforms in its consultation which closed on 19 November 2021. The primary objective of the consultation was to seek views on the proposals to reduce the burden data protection places on businesses. In addition, the government sought views on how Article 22 of the UK GDPR should be interpreted in the context of artificial intelligence (AI) in several areas, including where it related to automated decision-making.

We are also expecting to see updated data protection and employment practices guidance in 2022 from the Information Commissioner’s Office (ICO), following a call for views which ran until 28 October 2021. The new guidance will finally replace the ICO’s employment practices code, supplementary guidance and the quick guide, which have not been updated since the Data Protection Act 2018 came into force. The new guidance will cover topics including recruitment and selection, employment records, monitoring of workers, and information about workers’ health.

Human Rights Act 1998

In 2020, the government announced the launch of an independent review of the Human Rights Act 1998 (HRA 1998), while emphasising its ongoing commitment to the European Convention on Human Rights. The Independent Human Rights Act Review (IHRAR), conducted by an independent panel chaired by Sir Peter Gross, a former Court of Appeal judge, reported back to the government on 29 October 2021. On 14 December 2021, the Ministry of Justice published Human Rights Act Reform: A Modern Bill Of Rights, a consultation on replacing the HRA 1998 with a Bill of Rights. The full report conducted by the IHRAR Panel was also published on 14 December 2021. Whether the right to a jury trial should be recognised in the Bill of Rights and the introduction of a permission stage for human rights claims where claimants must establish they have suffered “significant disadvantage” or that the claim is of “overriding public importance” are key proposals included in the consultation document.

Many of the proposals are regarded as highly controversial. However, it should be recognised that the proposals are simply being consulted on at this stage and therefore whether they are then made into law remains to be seen following the close of the consultation in March 2022.

Mandatory Vaccines & Vaccine Passports: A Winter of COVID Discontent?

Posted on 15 September 20219 June 2023 by @deliver_els

Covid-19 has created many challenges but one of the most contentious is the introduction of mandatory vaccines for Care Workers in England and vaccine passports in Scotland.

Scientists have told us that the COVD-19 vaccine is very effective at preventing serious ill health and hospitalisation but that it does not prevent somebody from contracting COVID or transmitting it. Why then has there been a push to introduce compulsory vaccinations and vaccine passports and what is the current position across the UK?

The Current Position on Mandatory Vaccines & Vaccine Passports

In England

On 22 July 2021 the UK Government passed new regulations which will amend the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (SI 2014/2936) to require workers deployed in Care Quality Commission (CQC) regulated care homes in England to be fully vaccinated unless they are exempt from 11 November 2021 and the UK Government intends to consult on whether to extend the requirement to workers in the health and social care sectors.

Apart from the new regulations requiring workers in Care Quality Commission (CQC) regulated care homes in England to be fully vaccinated, there is currently no legislative power for the UK government to mandate COVID-19 vaccination across the board and to do so would require further primary legislation.

On 13 September 2021 Health Secretary Sajid Javid confirmed that plans to introduce vaccine passports for access to nightclubs and large events in England will not go ahead.

In Scotland

On 9 September 2021 and with support from the Scottish Greens, the devolved SNP Administration in Scotland approved plans for vaccine passports for those seeking entry to nightclubs and large-scale events from 1 October 2021.

In Wales and Northern Ireland

At this time, the devolved administrations of Wales and Northern Ireland have not set out their positions in respect mandatory vaccines and/or vaccine passports.

Implications of Making COVID-19 Vaccines Compulsory

In its 2019-20 report on seasonal influenza vaccines, Public Health England’s reported that one in four healthcare workers did not get a flu vaccine and there are early indications that roughly the same proportion of people are wary of having COVID-19 jabs, a view that appears to be reflected in a recent YouGov poll which indicated that out of a total of 5,351 adults surveyed, a majority (44%) oppose compulsory vaccination compared with a minority (33%) that support it.

Despite public opinion and the fact there is currently no legislative power to mandate COVID-19 vaccination across the board in Scotland, Wales, Northern Ireland and in England (for Employers outside the care sector), many Employers across the UK are still considering making COVID-19 vaccines compulsory for those entering the workplace. However, those that choose to impose such a requirement may be exposing themselves to several issues, including:

Mandatory vaccination could be indirectly discriminatory against certain protected characteristics and a breach of Article 8 of the European Convention on Human Rights.

Vaccination is not suitable for everyone.

A vaccination requirement may be difficult to justify on health and safety grounds because the current advice is that vaccination is not a substitute for workplace COVID-secure measures which must still be complied with.

Consultation with workplace and health and safety representatives, and with trade unions, is likely to be required.

Data protection implications inclusive of requiring employees to provide information on their vaccination status, verifying its accuracy, and retaining that data.

Notwithstanding the potential legal challenges Employers might face by making COVID-19 vaccines compulsory for those entering the workplace, Employers could face division among their workers and an exodus that could leave them short staffed and unable to fill vacancies.

Vaccine hesitancy exists for many reasons. Some people can’t have the vaccine for medical reasons and will likely fall under one of the exemptions, but others may be hesitant or refuse on religious or spiritual grounds or due to a fear of vaccinations generally. Employers considering making COVID-19 vaccines compulsory for those entering the workplace should consider ALL the facts very carefully before pressing ahead.

Acas advises that employers should support staff in getting the vaccine without making it a requirement, and encourage them to do so by, for example, offering paid time off to attend vaccination appointments.

Implications of Mandatory Vaccine Passports

Although the devolved Scottish Administration are alone in introducing vaccine passports for those seeking entry to nightclubs and large-scale events, the UK Government and devolved Administrations of Wales and Northern Ireland haven’t ruled this out, so similar issues to those associated with compulsory vaccines may arise not only Scotland but across the UK.

Some might argue that vaccine passports are an iron fist in a velvet glove approach to imposing mandatory vaccines by stealth and others might argue that such a scheme denies people the freedom of choice by limiting what they can do and where they can go without a vaccine passport but whatever way you look at it, the imposition of vaccine passports will potentially give rise to the same issues mandatory vaccines creates. Other issues which vaccine passports may give rise to include:

Will staff working at nightclubs and/or venues hosting large-scale events be required to have a vaccine passport? If they aren’t vaccinated, will they be denied work?
If they are denied work, who will pay them?

If the employer denies them work and/or pay won’t that be a breach of their contract of employment giving rise to claims for breach of contract, unfair dismissal and/or discrimination?

If ticket holders at large-scale events are denied access because they don’t have a vaccine passport, will they simply lose out or will they be entitled to a refund?

Who will pay the refund, the venue or the government? If it’s the venue, will it be entitled to compensation?

Are vaccine passports and requiring individuals to provide information on their vaccination status to stewards at nightclubs and large-scale events indirectly discriminatory against certain protected characteristics and a breach of Article 8 of the European Convention on Human Rights?

Avoiding a Winter of COVID Discontent

Forcing people to do something, either directly or indirectly, will almost always invoke strong feelings and will often also involve competing rights. For example, an individual’s right to choose verses another individual’s right to be safe in the workplace and the community.

However, when it comes to compulsory vaccines for those entering the workplace and mandatory vaccine passports for those wishing to enter nightclubs and/or large-scale events, whose rights should prevail?

Across the UK uptake of the COVID-19 vaccine has been high with 89% of the over 16’s having had the first does and 80% over 16’s having had the second dose. With booster doses becoming available to the over 50s and for those in the 12 to 15 age bracket as early as next week, we will likely see a sharp increase in voluntary vaccinations across the UK in the weeks ahead that will take us to a vaccination level high enough to keep everyone safe but without the need to push compulsory vaccination and vaccine passports further.

Ending Furlough: An Urgent Call to Action for Employers

Posted on 23 October 20208 June 2023 by @deliver_els

With the Coronavirus Job Retention scheme due to end on 31 October 2020, Employers have one week to decide what to do with staff who are currently furloughed and/or flexibly furloughed.

Ending Furlough: An Urgent Call to Action for Employers

Following yesterday’s announcement by the Chancellor, HMRC has published a policy paper containing more details on the Job Support Scheme which now defines the scheme is two ways:

JSS Open; and

JSS Closed

Under JSS Open, an employee will need to work at least 20% (no longer 33%) of their normal hours. They will receive normal pay for the hours they work, and two-thirds of pay (subject to a cap which bites against those earning more than £3,125 a month) for the hours they do not work. For that two-thirds top-up, the government will pay 61.67% and the employer will pay 5%, plus NI and pension contributions on the full amount. That is a significant change from the previous 50:50 split towards the two-thirds top-up, shifting the financial cost overwhelmingly to the public purse. There must be a written agreement between employer and employee, agreeing to the changes.

Under JSS Closed, the position remains that the employee will receive two-thirds of their normal wages, funded by the government (again, with a cap biting against those who earn more than £3,125pm). The employer will have to pay the NI and pension contributions on that amount. Again, there must be a written agreement between employer and employee, agreeing to the changes.

The policy paper provides some detail about how the scheme will operate, eligibility criteria and how to calculate pay, but full details are still to be confirmed and Treasury Direction is expected to be issued soon.

Decision Time for Employers

In the meantime, Employers will need to decide what to do with who are currently furloughed and/or flexibly furloughed and our multi-award-winning team of employment law specialists are ready to help you!

We can give you advice and support on:

Ending furlough and/or flexible furlough

Employment contract changes necessary to utilise the Job Support Scheme

Drafting and providing written agreements between employer and employee, agreeing to the changes.

The correct redundancy processes to ensure fairness and legal compliance

Utilising settlement agreements as an alternative to a full blown redundancy process.

Book your FREE Consultation Now or call us on 0800 612 4772 to speak to a specialist today.

Coronavirus & Homeworking and Travel | Key Questions for Employers Answered

Posted on 19 March 202013 November 2023 by @deliver_els

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).

Public Health England and BEIS: COVID-19: guidance for employees, employers and businesses (applicable in England).

Welsh Government: Coronavirus (COVID-19): employers and businesses guidance (applicable in Wales).

WHO guidance: Getting your workplace ready for COVID-19 (applicable globally).

For information on the circumstances in which individuals should self-isolate see the following sources:

Health Protection Scotland: Coronavirus (COVID-19)and NHS Inform: Coronavirus (COVID-19) (applicable in Scotland)

Public Health England: COVID-19: stay at home guidance (applicable in England)

Public Health Wales: Novel Coronavirus (COVID-19) – Self-isolation advice (applicable in Wales)

https://employmentlawservices.com/free-homeworking-policy-for-employers/

Coronavirus & Data Protection Issues | Key Questions for Employers Answered

Posted on 18 March 202016 August 2023 by @deliver_els

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

Health Protection Scotland: COVID-19: Information and Guidance for Non-Healthcare Settings (applicable in Scotland).

Public Health England and BEIS: COVID-19: guidance for employees, employers and businesses (applicable in England).

Welsh Government: Coronavirus (COVID-19): employers and businesses guidance (applicable in Wales).

WHO guidance: Getting your workplace ready for COVID-19 (applicable globally).

For information on the circumstances in which individuals should self-isolate see the following sources:

Health Protection Scotland: Coronavirus (COVID-19)and NHS Inform: Coronavirus (COVID-19) (applicable in Scotland)

Public Health England: COVID-19: stay at home guidance (applicable in England)

Public Health Wales: Novel Coronavirus (COVID-19) – Self-isolation advice (applicable in Wales)

Coronavirus | Changing Employment Terms & Lay-Offs

Posted on 16 March 202013 November 2023 by @deliver_els

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.

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

Health Protection Scotland: COVID-19: Information and Guidance for Non-Healthcare Settings (applicable in Scotland).

Public Health England and BEIS: COVID-19: guidance for employees, employers and businesses (applicable in England).

Welsh Government: Coronavirus (COVID-19): employers and businesses guidance (applicable in Wales).

WHO guidance: Getting your workplace ready for COVID-19 (applicable globally).

For information on the circumstances in which individuals should self-isolate see the following sources:

Health Protection Scotland: Coronavirus (COVID-19)and NHS Inform: Coronavirus (COVID-19) (applicable in Scotland)

Public Health England: COVID-19: stay at home guidance (applicable in England)

Public Health Wales: Novel Coronavirus (COVID-19) – Self-isolation advice (applicable in Wales)

High Risk Employees and Discrimination Issues

Posted on 15 March 202013 November 2023 by @deliver_els

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.

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.

(Section 15, Equality Act 2020 (EqA 2010.)

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

Health Protection Scotland: COVID-19: Information and Guidance for Non-Healthcare Settings (applicable in Scotland).

Public Health England and BEIS: COVID-19: guidance for employees, employers and businesses (applicable in England).

Welsh Government: Coronavirus (COVID-19): employers and businesses guidance (applicable in Wales).

WHO guidance: Getting your workplace ready for COVID-19 (applicable globally).

For information on the circumstances in which individuals should self-isolate see the following sources:

Health Protection Scotland: Coronavirus (COVID-19)and NHS Inform: Coronavirus (COVID-19) (applicable in Scotland)

Public Health England: COVID-19: stay at home guidance (applicable in England)

Public Health Wales: Novel Coronavirus (COVID-19) – Self-isolation advice (applicable in Wales)

Free Homeworking Policy for Employers

Posted on 10 March 202013 November 2023 by @deliver_els

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:

https://employmentlawservices.com/emergency-legislation-on-statutory-sick-pay-announced-by-prime-minister/

https://employmentlawservices.com/coronavirus-employment-law-hr-implications-for-employers/

We also have 16 Essential HR Policies available for download via our website that you may be interested in.

https://employmentlawservices.com/employment-law-advice/sme-employer-toolkit/hr-document-packs/

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.

Other Useful Resources:

https://www.nhs.uk/conditions/coronavirus-covid-19/

https://www.gov.uk/guidance/wuhan-novel-coronavirus-information-for-the-public

https://www.gov.uk/guidance/contacts-phe-health-protection-teams

https://www.hps.scot.nhs.uk/a-to-z-of-topics/covid-19/

Coronavirus | Employment Law & HR Implications for Employers

Posted on 3 March 202013 November 2023 by @deliver_els

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.

Latest update: https://employmentlawservices.com/emergency-legislation-on-statutory-sick-pay-announced-by-prime-minister/

Useful Resources:

https://www.nhs.uk/conditions/coronavirus-covid-19/

https://www.gov.uk/guidance/wuhan-novel-coronavirus-information-for-the-public

https://www.gov.uk/guidance/contacts-phe-health-protection-teams

https://www.hps.scot.nhs.uk/a-to-z-of-topics/covid-19/