UK: Clyde & Co Q&A – Key Points for Employers on COVID-19
Coronavirus, now officially named COVID-19, was declared a global health emergency of international concern by the World Health Organisation on 30 January 2020. The outbreak poses a threat to many organisations and presents a number of employment issues for UK employers. This article addresses some of the immediate issues which UK employers are facing.
- Can an employer ask its staff to remain / work at home following travel to or via a particular country?
Employers have a duty to protect the health and safety of their employees and to provide a safe place to work. Aside from legal duties, there is also a strong moral imperative for employers to ensure that their staff feel safe and secure at work. At the time of writing, the NHS advises anyone who has travelled to Wuhan and Hubei province should self-isolate for 14 days after their return, and anyone returning from certain other affected areas (other parts of China, Thailand, Japan, Republic of Korea, Hong Kong, Taiwan, Singapore, Malaysia, Macau) should do so if they exhibit certain symptoms. For the protection of your remaining staff, employers will be keen to follow NHS guidelines and at the very least require those returning from Wuhan and Hubei to stay at home for 14 days. Many employers may also wish to extend this to those returning from the other affected areas too.From a pure employment law perspective, the first question to ask is whether there is an express or implied contractual right for the employee to attend work in these circumstances. It’s unlikely that a contract would include such a right, and there is no general implied term requiring an employer to provide work provided it continues to pay the employee’s wages. There are exceptions where there may be a right to work, such as where the employee would be deprived of the opportunity of earning remuneration eg by losing out on shift premia or commission. Therefore, unless such an exception applies, and provided there are no discriminatory issues at play (such as only requiring employees of Chinese origin to remain at home), you are unlikely to be in breach of contract by requiring employees to remain at, or work from home so that you can protect the rest of your workforce. It’s obviously important for such discussions to be conducted proportionately and sensitively (by listening and responding to any affected employee’s concerns) as a serious failure to do so could breach trust and confidence which would entitle the employee to resign and claim constructive unfair dismissal.
- What if an employee refuses to attend the workplace because of concerns about contracting the virus?
Current government advice is that well employees are not required to stay at home, unless they have recently returned from Wuhan and Hubei province or have been in close contact with someone with confirmed coronavirus. However, some people have real concerns about catching the virus particularly if they have genuine health concerns which make them more vulnerable, or they live with vulnerable family members. You should try to reassure employees that there is no need to panic as the risk to the UK population remains low, and advise them where to find further support. From an employment law perspective, employees are bound to obey reasonable and lawful management instructions. Therefore, unless the employee has good reason not to attend the workplace you would be entitled to discipline the employee for refusing to attend.
- What pay are employees entitled to if their employer asks them to remain at home?
Employees who are sick may be entitled to statutory sick pay as well as any company pay depending on the company’s sickness policy. Employees who aren’t sick but whose role isn’t appropriate for home working, should continue to be paid their wages unless there is an express contractual right for the employer to suspend without pay (but beware of potential indirect discrimination issues if this means treating large sections of the workforce in different ways). Employees who are required to work from home should, of course be paid in full. As mentioned above, there will be specific issues with staff who are deprived of earning pay such as piece workers or those on commission. If the situation worsens and government guidance changes, keeping staff at home on full pay will not be an option for most businesses so employers may have to consider options such as redundancies, or temporary solutions such as lay off or voluntary special leave policies where employees could opt to take paid or unpaid leave.
- What if a medical practitioner tells an employee to self-isolate or go into quarantine despite being well enough to work? Does the employer have to pay the employee?
In this situation the starting point is whether the employee is able to work from home. If so, the employee should be paid. If not, there is no obligation to pay the employee although given the reason for not being able to turn up to work is medical advice not to do so, it would be appropriate to treat the time off as sick leave and follow the usual sick leave policy.
- Can an employer request a staff member to seek medical advice/work from home because they are exhibiting certain symptoms?
In the absence of symptoms, a doctor would be unlikely to order tests and where there is no underlying sickness, a fit note from a doctor will most probably not be provided. If there were symptoms, this would be a reasonable request only where the employee has just returned from an affected area or lives or interacts with people who have. If the employee unreasonably refuses your request, you would be entitled to engage the disciplinary procedure for failing to obey a reasonable order. Some contracts provide that the employee will undergo a medical examination on request by the employer but this would need to be a private physician and that would have costs attached.
- Can an employer stop a staff member travelling to a particular country on personal travel?
It’s unlikely that you can order an employee not to take a holiday that’s already been booked. However, bearing in mind your duty to your other staff to provide a safe work place, it would be appropriate to warn the employee if they will have to self-isolate on return (if that’s your policy). Should the situation worsen, you could consider introducing an alternative policy which requires staff who book holidays to particular countries to self-isolate on return by taking the time out of their paid holiday entitlement or as unpaid leave. Whether you are entitled to do this would depend on their contractual terms. Again, such a policy should be introduced sensitively and with consultation with workplace representatives.
- Are there any best practice guidelines for maintaining a safe workplace when faced with a viral outbreak?
Employers should be prepared by keeping up to date with Government and public health advice. You should communicate clearly to employees what they need to do to take precautions – such as avoiding travel to affected areas or coming into contact with infected people. You should advise them what to do if they think they may have caught the virus.
- Any guidance on how to prepare if this was to escalate?
You should develop a contingency plan, assessing your level of exposure to any disruption to your business. This plan should be communicated to key personnel across the business. A contingency team should be identified to take responsibility for operating the plan should a pandemic occur. Any contingency plan should consider alternative ways of working to prevent spread of infection – such as home working, increased use of video conferencing and calls to avoid face to face contact. The plan should also include strategies which deal with possible scenarios such as a reduction in business or staff shortages.
For more information please contact Joseph Granato, Communications Manager at L&E Global at firstname.lastname@example.org.