Below, we have provided answers to some FAQs to assist with these situations.
In a rapidly-moving situation with regular updates from the Government and Public Health England, we would always suggest seeking specific and up-to-date advice when making decisions on these issues.
Employees who are absent from work and have been diagnosed with coronavirus or are suffering from symptoms and awaiting test results are entitled to Statutory Sick Pay and/or contractual sick pay. Employers, however, 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 may be entitled to Statutory Sick Pay and/or contractual sick pay depending on the circumstances. There is some confusion around this point at the moment; ACAS suggests that it would be good practice for employers to pay sick pay in these circumstances. The Health Secretary has gone further and suggested that employees would be entitled to Statutory Sick Pay and the Prime Minister has announced that Statutory Sick Pay will now be payable on day one of a period of absence rather than on day four.
The Statutory Sick Pay Regulations state that, where the Government determines that there is a significant public health risk and employees stay away from work when they have been requested or required to do so by a health professional in a written notice because they may be infectious or have been in contact with someone who is, then they will be entitled to Statutory Sick Pay. In these current circumstances, a notice will typically be issued by either by a GP or NHS 111. While it is only those who receive a written notice of this sort who will be entitled to Statutory Sick Pay, employers may want to take a pragmatic view about whether they are going to request this written notice and whether that is reasonable in the circumstances or whether verbal confirmation from an employee that they been told to self-isolate by a medical practitioner or NHS 111 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. Taking current Public Health England advice, an employer should only do this when:
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 paying the employee 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 general Public Health England guidance. If employers pay full pay to employees who have been 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. Should they choose to self-isolate, even if their circumstances are not in accordance with Public Health England’s advice, we would advise discussing the situation with the employee before making any decisions about whether the employer will support this. If home working is possible, this could be one solution. We would advise that this solution is subject to regular review given that the coronavirus outbreak is set to continue for some time. If home working is not possible, then an employer should ask for clear medical advice as to why the employee should be self-isolating. At that point, the employer can then decide whether the employee is entitled to statutory sick pay, i.e. whether this medical advice constitutes a written notice justifying Statutory Sick Pay or possibly contractual sick pay. Employers should also be aware of possible discrimination issues if employee cites their disability as a reason they are not attending the workplace.
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, especially if they know that colleagues have visited Category 2 areas. All employers have a duty of care to provide a safe environment for employees and this includes taking all measures, as advised by Public Health England, 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, refuses to attend the workplace. If they are disabled, then it may be necessary to make reasonable adjustments. This might include helping the employee address their anxieties and/or giving them paid sick leave until they feel able to return to work. This will 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 NHS 111 or Public Health England.
Summary
We would advise that employers address the following questions when dealing with an employee is who is self-isolating:
Please contact Libby Hubbard.
In a rapidly-moving situation with regular updates from the Government and Public Health England, we would always suggest seeking specific and up-to-date advice when making decisions on these issues.
Over the past two years, we have seen an increasing number of GDPR claims being made alleging that an individual’s data protection rights have been breached.
Anthony Collins Solicitors are delighted to announce that they have been ranked as a Band 1 firm in Chambers and Partners 2022.
Alice Kinder, pensions and employment solicitor takes on the role in representing and supporting more than 5,500 legal professionals located across Birmingham and the Greater Midlands.
Our annual virtual employment law update catches up on the cases, legislation and changes over the last 12 months.
Anthony Collins Solicitors are presenting a series of podcasts with employees to raise awareness about disabilities around the firm.
Answering key questions about the details and practicalities of mandatory vaccinations in care home settings.
Anthony Collins Solicitors (ACS) has appointed a new partner to its market-leading social housing property team.
On 7 September 2021, the Regulator of Social Housing (RSH) published its annual consumer review.
From today (1 October 2021) there is yet more change on the possession front!
We are delighted to secure our position as a top-tier firm in five of our practice areas in the Legal 500 2022 edition.
To receive invitations to our events, as well as information and articles on legal issues and sector developments that are of interest to you, please sign up to Newsroom.