A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
The spread of the Coronavirus across the UK and the Government’s response and public health strategy is resulting in an increasing number of corollary issues within the workplace. Issues such as self-isolation, Statutory Sick Pay and a downturn in business are key and the situation is not a static one.
Below, we have provided answers to some FAQs to assist with these situations.
In a rapidly-moving situation with daily updates from the Government and the Chief Medical Officer, we would always suggest seeking specific and up to date advice when making decisions on these issues.
The information in this briefing is correct as at 4 pm 18/03/20.
Service delivery roles
Employers have a duty to protect the Health and Safety of its employees. A fundamental requirement is to take steps to ensure that there is good hygiene in the workplace and that working practices do not pose undue risks to employees and they are given adequate protection. These steps will range from assessing whether employees need personal protective equipment when carrying out their roles, especially when caring for individuals with symptoms, through to ensuring thorough cleaning of premises and reviewing hand washing facilities and practices. A further key requirement is to ensure effective communication with employees to update them on Government guidelines and any key changes that may need to be implemented in a short time frame. Effective and regular communication with employees can also help employees feel safer in the workplace if they trust their employer to keep them updated and informed.
Employees who are absent from work and have been diagnosed with coronavirus or are suffering from symptoms are entitled to Statutory Sick Pay (SSP) and/or contractual sick pay. Employers are advised by the Government to be flexible regards notification of the illness, as sufferers have been told not to attend GP surgeries and so will not be able to obtain their normal sickness certification.
Do employees who are self-isolating get sick pay?
Employees who are not ill but are self-isolating are entitled to Statutory Sick Pay and/or contractual sick pay depending on the circumstances. The Statutory Sick Pay Regulations have been updated so that anyone in self-isolation is deemed incapable of work and entitled to SSP. In more ‘normal circumstances’ it is only those who receive a written notice of this sort who will be entitled to Statutory Sick Pay. In current circumstances, employers may want to take a pragmatic view about whether they are going to request this written notice and whether that is reasonable or whether verbal confirmation from an employee that they been told to self-isolate by a medical practitioner or NHS 111 or Government guidance is acceptable.
Contractual sick pay is, of course, dependent on the contents of the contract or policy. Where the wording in the contract or policy closely follows the Statutory Sick Pay Regulations, then an employee might be entitled to contractual sick pay even if they are asymptomatic and have self-isolated. Where the wording doesn’t follow the regulations, then it seems less likely that the employee would be entitled to contractual sick pay. Should they wish to do so, employers can use their discretion and pay contractual sick pay, even when the employee is not entitled. We suggest that, where this happens, it is made clear this exercise of discretion is not a change to the policy or contract.
What happens if an employer requests that an employee self-isolates?
This situation may be different where the employee is willing to work and has not been told by health professionals to self-isolate but the employer has told them to remain away from work.
In these situations, the employer should again look to see whether there are any options for working from home. If this is not possible, we would advise the employee to be paid their full pay.
Employers may want to be careful about drawing distinctions on pay between those who remain away from work following instruction from a health professional and those who have not been instructed to stay away but make their own decision to stay away from work following Government guidance. If employers pay full pay to employees who are requested to place themselves in isolation by medical practitioners but not to those who self-isolate, this might lead to employees who are self-isolating coming back to work. Not only might this put other employees in danger, but if the employee is then requested to stay away from work by the employer, they would be entitled to full pay in any event.
What about employees who have an underlying health condition and self-isolate?
Employees who have underlying health conditions or who may be more susceptible to the virus may be more anxious at this time. Government guidance on social distancing gives a list of those considered most at risk. If possible, it is advisable that employees who have any of these conditions work at home or very much limit their time in work. If home working is not possible, then employers should take a range of factors into account before deciding how these employers should be paid. Employers should also be aware of possible discrimination issues relating to disability, pregnancy and maternity and age.
What about employees who refuse to come into work because of their fear of exposure?
Given the current fears surrounding the virus, employees who have no reason to self-isolate under current guidance might feel nervous about attending the workplace. As noted above, all employers have a duty of care to provide a safe environment for employees, and this includes taking all measures, as advised by the Government, to minimise exposure and contagion. If an employer has done this and an employee still refuses to attend work, then the employee must either demonstrate that they can work from wherever they are currently based, or they may need to take unpaid leave or holiday. Employers will need to be wary when an employee who suffers from mental health issues, such as anxiety etc. refuses to attend the workplace. If they are disabled, then it may be necessary to make reasonable adjustments. This might include so helping the employee address their anxieties and/or giving them paid sick leave until they feel able to return to work. This will obviously need to be kept under review.
Do employers have the right to request details as to why an employee is self-isolating?
All employees must inform their employers of any reason why they are not attending work, usually in accordance with their contract of employment. Failure to do so is unauthorised absence and employees may be subject to action under the employer’s disciplinary policy. It is reasonable for an employer to request details as to why an employee is absent and to clarify the period of their absence. In these circumstances, it is appropriate to request that employees confirm on their first day of absence the reason they are self-isolating and the relevant advice they have followed from NHS111 or Public Health England.
Downturn in business
The economic impact of the virus will be widespread. This inevitably will have an impact on employers suffering the double blow of paying SSP and a loss of business. The Government will reimburse small to medium-sized business eligible SSP costs for two weeks for each employee; however, that may not be enough. We would advise employers who are anticipating reducing staff costs to look to their contracts to see whether they include lay off provisions. Many will not. A unilateral reduction in hours will be a breach of contract. As a result, employers may wish to seek to agree a period of reduced or unpaid leave as an alternative to redundancies. Other options to consider include requiring employees to take annual leave (which can be done in certain circumstances) or asking people to cover other roles or exploring seconding them to another employer with a shortage of workers.
- In service delivery roles, take adequate steps to protect the health and safety of your workforce;
- If employees are self-isolating, contact them to understand why and whether they are able to work from home;
- SSP will have to be paid when employees are self-isolating in accordance with Government guidelines and they are unable to work from home;
- Open discussions on other ways to take time off where there is no option to work from home and no entitlement to SSP;
- What are the options when economic downturn impacts the affordability of employees?; and
- Keep in contact wherever possible with employees; fear of the future and for the jobs might be key and silence will exacerbate that fear.
For more information
Please contact Libby Hubbard.
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